As Passed by the House

126th General Assembly
Regular Session
2005-2006
H. B. No. 144


Representatives Buehrer, Aslanides, Barrett, Daniels, Domenick, C. Evans, D. Evans, Faber, Flowers, Gilb, Harwood, Hughes, Latta, McGregor, Miller, Oelslager, Reidelbach, Schneider, Seaver, Seitz, G. Smith 



A BILL
To amend section 2317.02 of the Revised Code to waive 1
the physician-patient and attorney-client 2
privileges in probate cases under certain 3
circumstances.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 in7
certain respects:8

       (A) An attorney, concerning a communication made to the9
attorney by a client in that relation or the attorney's advice to10
a client, except that the attorney may testify by express consent11
of the client or, if the client is deceased, by the express12
consent of the surviving spouse or the executor or administrator13
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 under16
this division, the attorney may be compelled to testify on the17
same subject;.18

       The testimonial privilege established under this division 19
does not apply concerning a communication between a client who has 20
since died and the deceased client's attorney if the communication 21
is relevant to a dispute between parties who claim through that 22
deceased client, regardless of whether the claims are by testate 23
or intestate succession or by inter vivos transaction.24

       (B)(1) A physician or a dentist concerning a communication25
made to the physician or dentist by a patient in that relation or26
the physician's or dentist's advice to a patient, except as27
otherwise provided in this division, division (B)(2), and division28
(B)(3) of this section, and except that, if the patient is deemed29
by section 2151.421 of the Revised Code to have waived any30
testimonial privilege under this division, the physician may be31
compelled to testify on the same subject.32

       The testimonial privilege established under this division33
does not apply, and a physician or dentist may testify or may be34
compelled to testify, in any of the following circumstances:35

       (a) In any civil action, in accordance with the discovery36
provisions of the Rules of Civil Procedure in connection with a37
civil action, or in connection with a claim under Chapter 4123. of38
the Revised Code, under any of the following circumstances:39

       (i) If the patient or the guardian or other legal40
representative of the patient gives express consent;41

       (ii) If the patient is deceased, the spouse of the patient or 42
the executor or administrator of the patient's estate gives43
express consent;44

       (iii) If a medical claim, dental claim, chiropractic claim,45
or optometric claim, as defined in section 2305.113 of the Revised46
Code, an action for wrongful death, any other type of civil47
action, or a claim under Chapter 4123. of the Revised Code is48
filed by the patient, the personal representative of the estate of49
the patient if deceased, or the patient's guardian or other legal50
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 under54
section 2151.412 of the Revised Code or the court-ordered55
treatment or services are necessary or relevant to dependency,56
neglect, or abuse or temporary or permanent custody proceedings57
under Chapter 2151. of the Revised Code.58

       (c) In any criminal action concerning any test or the results 59
of any test that determines the presence or concentration of 60
alcohol, a drug of abuse, or alcohol and a drug of abuse in the61
patient's blood, breath, urine, or other bodily substance at any62
time relevant to the criminal offense in question.63

       (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, in66
accordance with the Rules of Evidence, of a patient's medical or67
dental records or other communications between a patient and the68
physician or dentist that are related to the action and obtained69
by subpoena, search warrant, or other lawful means. A court that70
permits or compels a physician or dentist to testify in such an71
action or permits the introduction into evidence of patient72
records or other communications in such an action shall require73
that appropriate measures be taken to ensure that the74
confidentiality of any patient named or otherwise identified in75
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

       (e) In any will contest action under sections 2107.71 to79
2107.77 of the Revised Code if all of the following apply:80

       (i) The patient is deceased.81

       (ii) A party to the will contest action requests the82
testimony, demonstrates to the court that that party would be an 83
heir of the patient if the patient died without a will, is a84
beneficiary under the will that is the subject of the will contest85
action, or is a beneficiary under another testamentary document86
allegedly executed by the patient, and demonstrates to the court87
that the testimony is necessary to establish the party's rights as88
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

       (iii) Division (B)(1)(e)(i) of this section does not require 103
a mental health professional to disclose psychotherapy notes, as 104
defined in 45 C.F.R. 164.501.105

       (iv) An interested person who objects to testimony or 106
disclosure under division (B)(1)(e)(i) of this section may seek a 107
protective order pursuant to Civil Rule 26.108

       (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 written117
statement to a health care provider that states that an official118
criminal investigation has begun regarding a specified person or119
that a criminal action or proceeding has been commenced against a120
specified person, that requests the provider to supply to the121
officer copies of any records the provider possesses that pertain122
to any test or the results of any test administered to the123
specified person to determine the presence or concentration of124
alcohol, a drug of abuse, or alcohol and a drug of abuse in the125
person's blood, breath, or urine at any time relevant to the126
criminal offense in question, and that conforms to section127
2317.022 of the Revised Code, the provider, except to the extent128
specifically prohibited by any law of this state or of the United129
States, shall supply to the officer a copy of any of the requested130
records the provider possesses. If the health care provider does131
not possess any of the requested records, the provider shall give132
the officer a written statement that indicates that the provider133
does not possess any of the requested records.134

       (b) If a health care provider possesses any records of the135
type described in division (B)(2)(a) of this section regarding the136
person in question at any time relevant to the criminal offense in137
question, in lieu of personally testifying as to the results of138
the test in question, the custodian of the records may submit a139
certified copy of the records, and, upon its submission, the140
certified copy is qualified as authentic evidence and may be141
admitted as evidence in accordance with the Rules of Evidence.142
Division (A) of section 2317.422 of the Revised Code does not143
apply to any certified copy of records submitted in accordance144
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 who146
administered the test to which the records pertain, the person147
under whose supervision the test was administered, the custodian148
of the records, the person who made the records, or the person149
under whose supervision the records were made.150

       (3)(a) If the testimonial privilege described in division151
(B)(1) of this section does not apply as provided in division152
(B)(1)(a)(iii) of this section, a physician or dentist may be153
compelled to testify or to submit to discovery under the Rules of154
Civil Procedure only as to a communication made to the physician155
or dentist by the patient in question in that relation, or the156
physician's or dentist's advice to the patient in question, that157
related causally or historically to physical or mental injuries158
that are relevant to issues in the medical claim, dental claim,159
chiropractic claim, or optometric claim, action for wrongful160
death, other civil action, or claim under Chapter 4123. of the161
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 as164
provided in division (B)(1)(c) of this section, the physician or165
dentist, in lieu of personally testifying as to the results of the166
test in question, may submit a certified copy of those results,167
and, upon its submission, the certified copy is qualified as168
authentic evidence and may be admitted as evidence in accordance169
with the Rules of Evidence. Division (A) of section 2317.422 of170
the Revised Code does not apply to any certified copy of results171
submitted in accordance with this division. Nothing in this172
division shall be construed to limit the right of any party to173
call as a witness the person who administered the test in174
question, the person under whose supervision the test was175
administered, the custodian of the results of the test, the person176
who compiled the results, or the person under whose supervision177
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 to181
testify or to submit to discovery in the will contest action under182
sections 2107.71 to 2107.77 of the Revised Code only as to the183
patient in question on issues relevant to the competency of the184
patient at the time of the execution of the will. Testimony or185
discovery conducted pursuant to this division shall be conducted186
in accordance with the Rules of Civil Procedure.187

       (4) The testimonial privilege described in division (B)(1) of 188
this section is not waived when a communication is made by a189
physician to a pharmacist or when there is communication between a190
patient and a pharmacist in furtherance of the physician-patient191
relation.192

       (5)(a) As used in divisions (B)(1) to (4) of this section,193
"communication" means acquiring, recording, or transmitting any194
information, in any manner, concerning any facts, opinions, or195
statements necessary to enable a physician or dentist to diagnose,196
treat, prescribe, or act for a patient. A "communication" may197
include, but is not limited to, any medical or dental, office, or198
hospital communication such as a record, chart, letter,199
memorandum, laboratory test and results, x-ray, photograph,200
financial statement, diagnosis, or prognosis.201

       (b) As used in division (B)(2) of this section, "health care202
provider" means a hospital, ambulatory care facility, long-term203
care facility, pharmacy, emergency facility, or health care204
practitioner.205

       (c) As used in division (B)(5)(b) of this section:206

       (i) "Ambulatory care facility" means a facility that provides207
medical, diagnostic, or surgical treatment to patients who do not208
require hospitalization, including a dialysis center, ambulatory209
surgical facility, cardiac catheterization facility, diagnostic210
imaging center, extracorporeal shock wave lithotripsy center, home211
health agency, inpatient hospice, birthing center, radiation212
therapy center, emergency facility, and an urgent care center.213
"Ambulatory health care facility" does not include the private214
office of a physician or dentist, whether the office is for an215
individual or group practice.216

       (ii) "Emergency facility" means a hospital emergency217
department or any other facility that provides emergency medical218
services.219

       (iii) "Health care practitioner" has the same meaning as in220
section 4769.01 of the Revised Code.221

       (iv) "Hospital" has the same meaning as in section 3727.01 of222
the Revised Code.223

       (v) "Long-term care facility" means a nursing home,224
residential care facility, or home for the aging, as those terms225
are defined in section 3721.01 of the Revised Code; an adult care226
facility, as defined in section 3722.01 of the Revised Code; a227
nursing facility or intermediate care facility for the mentally228
retarded, as those terms are defined in section 5111.20 of the229
Revised Code; a facility or portion of a facility certified as a230
skilled nursing facility under Title XVIII of the "Social Security231
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended.232

       (vi) "Pharmacy" has the same meaning as in section 4729.01 of233
the Revised Code.234

       (6) Divisions (B)(1), (2), (3), (4), and (5) of this section235
apply to doctors of medicine, doctors of osteopathic medicine,236
doctors of podiatry, and dentists.237

       (7) Nothing in divisions (B)(1) to (6) of this section238
affects, or shall be construed as affecting, the immunity from239
civil liability conferred by section 307.628 of the Revised Code240
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 one243
involving the use of a drug of abuse, to the employer of the244
employee in accordance with division (B) of that section. As used245
in division (B)(7) of this section, "employee," "employer," and246
"physician" have the same meanings as in section 2305.33 of the247
Revised Code.248

       (C) A member of the clergy, rabbi, priest, or regularly249
ordained, accredited, or licensed minister of an established and250
legally cognizable church, denomination, or sect, when the member251
of the clergy, rabbi, priest, or minister remains accountable to252
the authority of that church, denomination, or sect, concerning a253
confession made, or any information confidentially communicated,254
to the member of the clergy, rabbi, priest, or minister for a255
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 testify258
by express consent of the person making the communication, except259
when the disclosure of the information is in violation of a sacred260
trust;261

       (D) Husband or wife, concerning any communication made by one 262
to the other, or an act done by either in the presence of the263
other, during coverture, unless the communication was made, or act264
done, in the known presence or hearing of a third person competent265
to be a witness; and such rule is the same if the marital relation266
has ceased to exist;267

       (E) A person who assigns a claim or interest, concerning any268
matter in respect to which the person would not, if a party, be269
permitted to testify;270

       (F) A person who, if a party, would be restricted under271
section 2317.03 of the Revised Code, when the property or thing is272
sold or transferred by an executor, administrator, guardian,273
trustee, heir, devisee, or legatee, shall be restricted in the274
same manner in any action or proceeding concerning the property or275
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 under279
Chapter 4757. of the Revised Code as a professional clinical280
counselor, professional counselor, social worker, independent281
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

       (a) The communication or advice indicates clear and present288
danger to the client or other persons. For the purposes of this289
division, cases in which there are indications of present or past290
child abuse or neglect of the client constitute a clear and291
present danger.292

       (b) The client gives express consent to the testimony.293

       (c) If the client is deceased, the surviving spouse or the294
executor or administrator of the estate of the deceased client295
gives express consent.296

       (d) The client voluntarily testifies, in which case the297
school guidance counselor or person licensed or registered under298
Chapter 4757. of the Revised Code may be compelled to testify on299
the same subject.300

       (e) The court in camera determines that the information301
communicated by the client is not germane to the counselor-client, 302
marriage and family therapist-client, or social worker-client 303
relationship.304

       (f) A court, in an action brought against a school, its305
administration, or any of its personnel by the client, rules after306
an in-camera inspection that the testimony of the school guidance307
counselor is relevant to that action.308

       (g) The testimony is sought in a civil action and concerns309
court-ordered treatment or services received by a patient as part310
of a case plan journalized under section 2151.412 of the Revised311
Code or the court-ordered treatment or services are necessary or312
relevant to dependency, neglect, or abuse or temporary or313
permanent custody proceedings under Chapter 2151. of the Revised314
Code.315

       (2) Nothing in division (G)(1) of this section shall relieve316
a school guidance counselor or a person licensed or registered317
under Chapter 4757. of the Revised Code from the requirement to318
report information concerning child abuse or neglect under section319
2151.421 of the Revised Code.320

       (H) A mediator acting under a mediation order issued under321
division (A) of section 3109.052 of the Revised Code or otherwise322
issued in any proceeding for divorce, dissolution, legal323
separation, annulment, or the allocation of parental rights and324
responsibilities for the care of children, in any action or325
proceeding, other than a criminal, delinquency, child abuse, child326
neglect, or dependent child action or proceeding, that is brought327
by or against either parent who takes part in mediation in328
accordance with the order and that pertains to the mediation329
process, to any information discussed or presented in the330
mediation process, to the allocation of parental rights and331
responsibilities for the care of the parents' children, or to the332
awarding of parenting time rights in relation to their children;333

       (I) A communications assistant, acting within the scope of334
the communication assistant's authority, when providing335
telecommunications relay service pursuant to section 4931.35 of336
the Revised Code or Title II of the "Communications Act of 1934,"337
104 Stat. 366 (1990), 47 U.S.C. 225, concerning a communication338
made through a telecommunications relay service. Nothing in this339
section shall limit the obligation of a communications assistant340
to divulge information or testify when mandated by federal law or341
regulation or pursuant to subpoena in a criminal proceeding.342

       Nothing in this section shall limit any immunity or privilege343
granted under federal law or regulation.344

       (J)(1) A chiropractor in a civil proceeding concerning a345
communication made to the chiropractor by a patient in that346
relation or the chiropractor's advice to a patient, except as347
otherwise provided in this division. The testimonial privilege348
established under this division does not apply, and a chiropractor349
may testify or may be compelled to testify, in any civil action,350
in accordance with the discovery provisions of the Rules of Civil351
Procedure in connection with a civil action, or in connection with352
a claim under Chapter 4123. of the Revised Code, under any of the353
following circumstances:354

       (a) If the patient or the guardian or other legal355
representative of the patient gives express consent.356

       (b) If the patient is deceased, the spouse of the patient or357
the executor or administrator of the patient's estate gives358
express consent.359

       (c) If a medical claim, dental claim, chiropractic claim, or360
optometric claim, as defined in section 2305.113 of the Revised361
Code, an action for wrongful death, any other type of civil362
action, or a claim under Chapter 4123. of the Revised Code is363
filed by the patient, the personal representative of the estate of364
the patient if deceased, or the patient's guardian or other legal365
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 the372
patient in question, that related causally or historically to373
physical or mental injuries that are relevant to issues in the374
medical claim, dental claim, chiropractic claim, or optometric375
claim, action for wrongful death, other civil action, or claim376
under Chapter 4123. of the Revised Code.377

       (3) The testimonial privilege established under this division 378
does not apply, and a chiropractor may testify or be compelled to 379
testify, in any criminal action or administrative proceeding.380

       (4) As used in this division, "communication" means381
acquiring, recording, or transmitting any information, in any382
manner, concerning any facts, opinions, or statements necessary to383
enable a chiropractor to diagnose, treat, or act for a patient. A384
communication may include, but is not limited to, any385
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 2. That existing section 2317.02 of the Revised Code 389
is hereby repealed.390

       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 the394
principle stated in division (B) of section 1.52 of the Revised395
Code that amendments are to be harmonized if reasonably capable of396
simultaneous operation, finds that the composite is the resulting397
version of the section in effect prior to the effective date of398
the section as presented in this act.399