| (B) Where the violation was an act or practice declared to
be | 30 |
| deceptive or unconscionable by rule adopted under division (B)(2) | 31 |
| of section 1345.05 of the Revised Code before the consumer | 32 |
|
transaction on which the action is based, or an act or practice | 33 |
|
determined by a court of this state to violate section 1345.02, | 34 |
|
1345.03, or 1345.031 of the Revised Code and committed after the | 35 |
| decision
containing the determination has been made available for | 36 |
| public
inspection under division (A)(3) of section 1345.05 of the | 37 |
|
Revised Code, the consumer may rescind the transaction or
recover, | 38 |
| but not in a class action, three times the amount of
the | 39 |
| consumer's
actual economic damages or two hundred dollars, | 40 |
| whichever is greater, plus an amount not exceeding five thousand | 41 |
| dollars in noneconomic damages or
recover damages or other | 42 |
| appropriate relief in a class action
under Civil Rule 23, as | 43 |
| amended. | 44 |
| (2) If a consumer transaction between a loan officer, | 51 |
| mortgage broker, or nonbank mortgage lender and a customer is in | 52 |
| connection with a residential mortgage, revocation of the consumer | 53 |
| transaction in an action for rescission is only available to a | 54 |
| consumer in an individual action, and shall occur for no reason | 55 |
| other than one or more of the reasons set forth in the "Truth in | 56 |
| Lending Act," 82 Stat. 146 (1968), 15 U.S.C. 1635, not later than | 57 |
| the time limit within which the right of rescission under section | 58 |
| 125(f) of the "Truth in Lending Act" expires. | 59 |
| (E) When a consumer commences an individual action for a | 63 |
|
declaratory judgment or an injunction or a class action under
this | 64 |
| section, the clerk of court shall immediately mail a copy of
the | 65 |
| complaint to the attorney general. Upon timely application,
the | 66 |
| attorney general may be permitted to intervene in any private | 67 |
|
action or appeal pending under this section. When a judgment
under | 68 |
| this section becomes final, the clerk of court shall mail a
copy | 69 |
| of the judgment including supporting opinions to the
attorney | 70 |
| general for inclusion in the public file maintained
under division | 71 |
| (A)(3) of section 1345.05 of the Revised Code. | 72 |
| Sec. 2307.60. (A)(1)
Anyone injured in person or property by | 90 |
|
a
criminal act has, and
may recover full damages in, a civil | 91 |
|
action
unless specifically excepted by
law, may recover the costs | 92 |
|
of
maintaining the civil action and attorney's fees
if authorized | 93 |
|
by
any provision of the Rules of Civil Procedure or another | 94 |
|
section
of the Revised Code or under the common law of this state, | 95 |
|
and may
recover
punitive or exemplary damages if authorized by | 96 |
section
2315.21 or another
section of the Revised Code.
No record | 97 |
of a
conviction, unless
obtained by confession in open court, | 98 |
shall
be
used as evidence in a civil
action brought pursuant to | 99 |
division
(A) of
this
section. | 100 |
| (2) A final judgment of a trial court that has not been | 101 |
| reversed on appeal or otherwise set aside, nullified, or vacated, | 102 |
| entered after a trial or upon a plea of guilty, but not upon a | 103 |
| plea of no contest or the equivalent plea from another | 104 |
| jurisdiction, that adjudges an offender guilty of an offense of | 105 |
| violence, when entered as evidence in any subsequent civil | 106 |
| proceeding based on the criminal act, shall preclude the offender | 107 |
| from denying in the subsequent civil proceeding any fact essential | 108 |
| to sustaining that judgment, unless the offender can demonstrate | 109 |
| that extraordinary circumstances prevented the offender from | 110 |
| having a full and fair opportunity to litigate the issue in the | 111 |
| criminal proceeding or other extraordinary circumstances justify | 112 |
| affording the offender an opportunity to relitigate the issue. The | 113 |
| offender may introduce evidence of the offender's pending appeal | 114 |
| of the final judgment of the trial court, if applicable, and the | 115 |
| court may consider that evidence in determining the liability of | 116 |
| the offender. | 117 |
| (B)(1) As used in division (B) of this section, "tort action" | 118 |
|
means a civil action for damages for
injury, death, or loss to | 119 |
|
person or property other than a civil
action for damages for a | 120 |
|
breach of contract or another agreement
between persons. "Tort | 121 |
|
action" includes, but is not limited to, a
product liability | 122 |
|
claim, as defined in section 2307.71 of the Revised Code, and an | 123 |
| asbestos claim, as defined in section 2307.91 of the Revised Code, | 124 |
| an action for wrongful death under
Chapter 2125. of the
Revised | 125 |
| Code, and an action based on
derivative claims for relief. | 126 |
| (b) If a product liability claim is asserted on behalf of
the | 143 |
| surviving spouse, children, parents, or other next of kin of
a | 144 |
|
decedent or on behalf of the estate of a decedent, whether as a | 145 |
|
claim in a wrongful death action
under
Chapter 2125. of the | 146 |
|
Revised Code or as a survivorship claim,
whichever of the | 147 |
|
following is appropriate: | 148 |
| (5)
"Ethical medical device" means a medical device that
is | 166 |
|
prescribed, dispensed, or implanted by a physician or any
other | 167 |
|
person who is legally authorized to prescribe, dispense, or | 168 |
|
implant a medical device and that is regulated under the
"Federal | 169 |
|
Food, Drug, and Cosmetic Act," 52 Stat. 1040, 21 U.S.C. 301-392, | 170 |
|
as amended. | 171 |
| (8)
"Hazardous or toxic substances" include, but are not | 186 |
|
limited to, hazardous waste as defined in section 3734.01 of the | 187 |
|
Revised Code, hazardous waste as specified in the rules of the | 188 |
|
director of environmental protection pursuant to division (A) of | 189 |
|
section 3734.12 of the Revised Code, hazardous substances as | 190 |
|
defined in section 3716.01 of the Revised Code, and hazardous | 191 |
|
substances, pollutants, and contaminants as defined in or by | 192 |
|
regulations adopted pursuant to the
"Comprehensive Environmental | 193 |
|
Response, Compensation, and Liability Act of 1980," 94 Stat.
2767, | 194 |
|
42 U.S.C. 9601, as amended. | 195 |
| (13)
"Product liability claim" means a claim or cause of | 218 |
| action that is
asserted
in a civil action pursuant to sections | 219 |
| 2307.71 to 2307.80 of the Revised Code and that seeks to recover | 220 |
| compensatory
damages
from a manufacturer or supplier for death, | 221 |
| physical
injury to
person, emotional distress, or physical damage | 222 |
| to
property other
than the product in question, that
allegedly | 223 |
| arose
from
any of the
following: | 224 |
| "Product liability claim" also includes any public nuisance | 232 |
| claim or cause of action at common law in which it is alleged that | 233 |
| the design, manufacture, supply, marketing, distribution, | 234 |
| promotion, advertising, labeling, or sale of a product | 235 |
| unreasonably interferes with a right common to the general public. | 236 |
| (1) Subject to division (B) of this section, the | 271 |
| manufacturer's product
in
question was defective in manufacture or | 272 |
| construction as
described
in section 2307.74 of the Revised Code, | 273 |
| was defective
in design or
formulation as described in section | 274 |
| 2307.75 of the
Revised Code,
was defective due to inadequate | 275 |
| warning or
instruction as
described in section 2307.76 of the | 276 |
| Revised Code,
or was defective
because it did not conform to a | 277 |
| representation
made by its
manufacturer as described in section | 278 |
| 2307.77 of
the
Revised Code; | 279 |
(B) If
a claimant is unable because athe manufacturer's | 288 |
| product in question
was destroyed to establish by direct evidence | 289 |
| that the manufacturer's product in
question was defective or if a | 290 |
| claimant otherwise is unable to
establish by direct evidence that | 291 |
athe manufacturer's product in question was
defective, then, | 292 |
| consistent with the Rules of Evidence, it shall
be sufficient for | 293 |
| the claimant to present circumstantial or other
competent evidence | 294 |
| that
establishes, by a preponderance of the
evidence, that the | 295 |
| manufacturer's product
in question was defective in any one
of
the | 296 |
| four respects
specified in division (A)(1) of this
section. | 297 |
| (C) Proof that a manufacturer designed, formulated, produced, | 298 |
| constructed, created, assembled, or rebuilt the type of product in | 299 |
| question is not proof that the manufacturer designed, formulated, | 300 |
| produced, constructed, created, assembled, or rebuilt the actual | 301 |
| defective product in the product liability claim. A manufacturer | 302 |
| may not be held liable in a product liability action based on | 303 |
| market share, enterprise, or industrywide liability. | 304 |
| (A)(1) An attorney, concerning a communication made to the | 307 |
|
attorney by a client in that relation or the
attorney's advice to | 308 |
|
a client, except
that the attorney may testify by express consent | 309 |
|
of the client
or, if the client is deceased, by the express | 310 |
|
consent of the
surviving spouse or the executor or administrator | 311 |
|
of the estate
of the deceased client. However, if the
client | 312 |
| voluntarily
testifies or is deemed by section 2151.421 of
the | 313 |
| Revised Code to
have waived any testimonial privilege under
this | 314 |
| division, the
attorney may be compelled to testify on the
same | 315 |
| subject. | 316 |
| The testimonial privilege established under this division | 317 |
| does not apply concerning a communication between a client who has | 318 |
| since died and the deceased client's attorney if the communication | 319 |
| is relevant to a dispute between parties who claim through that | 320 |
| deceased client, regardless of whether the claims are by testate | 321 |
| or intestate succession or by inter vivos transaction, and the | 322 |
| dispute addresses the competency of the deceased client when the | 323 |
| deceased client executed a document that is the basis of the | 324 |
| dispute or whether the deceased client was a victim of fraud, | 325 |
| undue influence, or duress when the deceased client executed a | 326 |
| document that is the basis of the dispute. | 327 |
| (2) An attorney, concerning a communication made to the | 328 |
| attorney by a client in that relationship or the attorney's advice | 329 |
| to a client, except that if the client is an insurance company, | 330 |
| the attorney may be compelled to testify, subject to an in camera | 331 |
| inspection by a court, about communications made by the client to | 332 |
| the attorney or by the attorney to the client that are related to | 333 |
| the attorney's aiding or furthering an ongoing or future | 334 |
| commission of bad faith by the client, if the party seeking | 335 |
| disclosure of the communications has made a prima facie showing of | 336 |
| bad faith, fraud, or criminal misconduct by the client. | 337 |
| (B)(1) A physician or a dentist concerning a communication | 338 |
|
made to the physician or dentist by a patient in that relation or | 339 |
|
the
physician's or dentist's advice to a
patient, except as | 340 |
|
otherwise provided in this division, division (B)(2), and
division | 341 |
|
(B)(3) of this section, and except that, if the patient
is deemed | 342 |
|
by section 2151.421 of the Revised Code to have waived
any | 343 |
|
testimonial privilege under this division, the physician may
be | 344 |
|
compelled to testify on the same subject. | 345 |
| (iii) If a medical claim, dental claim, chiropractic
claim, | 358 |
|
or optometric claim, as defined in section 2305.113 of the
Revised | 359 |
|
Code, an action for wrongful death, any other type of
civil | 360 |
|
action, or a claim under Chapter 4123. of the Revised Code
is | 361 |
|
filed by the patient, the personal representative of the
estate of | 362 |
|
the patient if deceased, or the patient's guardian
or other legal | 363 |
|
representative. | 364 |
| (b) In any civil action concerning court-ordered treatment
or | 365 |
| services
received by a patient, if the court-ordered treatment
or | 366 |
| services were ordered
as part of a case plan journalized under | 367 |
|
section 2151.412 of the Revised Code or the
court-ordered | 368 |
|
treatment or services are necessary or relevant to dependency, | 369 |
|
neglect, or abuse or temporary or permanent custody proceedings | 370 |
|
under
Chapter 2151. of the Revised Code. | 371 |
| (c) In any criminal action concerning any test or the
results | 372 |
| of any test that determines the presence or concentration
of | 373 |
| alcohol,
a drug of abuse, a combination of them, a controlled | 374 |
| substance, or a metabolite of a controlled substance in the | 375 |
| patient's whole blood, blood serum or plasma, breath, urine, or | 376 |
| other bodily substance at any
time
relevant to the criminal | 377 |
| offense in question. | 378 |
| (d) In any criminal action against a physician
or dentist.
In | 379 |
| such an action, the testimonial privilege
established under
this | 380 |
| division does not prohibit the admission
into evidence, in | 381 |
|
accordance with the
Rules of
Evidence, of a patient's
medical or | 382 |
|
dental records or other communications between a
patient and the | 383 |
|
physician or dentist that are related to the
action and obtained | 384 |
|
by subpoena, search warrant, or other lawful
means. A court that | 385 |
|
permits or compels a physician or dentist
to testify in such an | 386 |
|
action or permits the introduction into
evidence of patient | 387 |
|
records or other communications in such an
action shall require | 388 |
|
that appropriate measures be taken to
ensure that the | 389 |
|
confidentiality of any patient named or
otherwise identified in | 390 |
|
the records is maintained. Measures to
ensure confidentiality
that | 391 |
| may be taken by the court include
sealing its records or
deleting | 392 |
| specific information from its
records. | 393 |
| (e)(i) If the communication was between a patient who has | 394 |
| since died and the deceased patient's physician or dentist, the | 395 |
| communication is relevant to a dispute between parties who claim | 396 |
| through that deceased patient, regardless of whether the claims | 397 |
| are by testate or intestate succession or by inter vivos | 398 |
| transaction, and the dispute addresses the competency of the | 399 |
| deceased patient when the deceased patient executed a document | 400 |
| that is the basis of the dispute or whether the deceased patient | 401 |
| was a victim of fraud, undue influence, or duress when the | 402 |
| deceased patient executed a document that is the basis of the | 403 |
| dispute. | 404 |
| (ii) If neither the spouse of a patient nor the executor or | 405 |
| administrator of that patient's estate gives consent under | 406 |
| division (B)(1)(a)(ii) of this section, testimony or the | 407 |
| disclosure of the patient's medical records by a physician, | 408 |
| dentist, or other health care provider under division (B)(1)(e)(i) | 409 |
| of this section is a permitted use or disclosure of protected | 410 |
| health information, as defined in 45 C.F.R. 160.103, and an | 411 |
| authorization or opportunity to be heard shall not be required. | 412 |
| (v) A person to whom protected health information is | 419 |
| disclosed under division (B)(1)(e)(i) of this section shall not | 420 |
| use or disclose the protected health information for any purpose | 421 |
| other than the litigation or proceeding for which the information | 422 |
| was requested and shall return the protected health information to | 423 |
| the covered entity or destroy the protected health information, | 424 |
| including all copies made, at the conclusion of the litigation or | 425 |
| proceeding. | 426 |
| (2)(a) If any law enforcement officer submits a written | 427 |
|
statement to a health
care provider that states that an official | 428 |
|
criminal investigation has begun
regarding a specified person or | 429 |
|
that a criminal action or proceeding has been
commenced against a | 430 |
|
specified person, that requests the provider to supply to
the | 431 |
|
officer copies of any records the provider possesses that pertain | 432 |
|
to any
test or the results of any test administered to the | 433 |
|
specified person to
determine the presence or concentration of | 434 |
|
alcohol, a drug of abuse, a combination of them, a controlled | 435 |
| substance, or a metabolite of a controlled substance in the | 436 |
| person's whole blood, blood serum or plasma, breath, or urine at | 437 |
| any time
relevant to the
criminal offense in question, and that | 438 |
| conforms to section
2317.022 of the Revised Code, the provider, | 439 |
| except to the extent
specifically
prohibited by any law of this | 440 |
| state or of the United
States, shall supply to
the officer a copy | 441 |
| of any of the requested
records the provider possesses. If
the | 442 |
| health care provider does
not possess any of the requested | 443 |
| records, the
provider shall give
the officer a written statement | 444 |
| that indicates that the
provider
does not possess any of the | 445 |
| requested records. | 446 |
| (b) If a health care provider possesses any records of the | 447 |
|
type described in
division (B)(2)(a) of this section regarding the | 448 |
|
person in question at any
time relevant to the criminal offense in | 449 |
|
question, in lieu of personally
testifying as to the results of | 450 |
|
the test in question, the custodian of the
records may submit a | 451 |
|
certified copy of the records, and, upon its submission,
the | 452 |
|
certified copy is qualified as authentic evidence and may be | 453 |
|
admitted as
evidence in accordance with the Rules of Evidence. | 454 |
|
Division (A) of section
2317.422 of the Revised Code does not | 455 |
|
apply to any certified copy of records
submitted in accordance | 456 |
|
with this division. Nothing in this division shall be
construed
to | 457 |
| limit the right of any party to call as a witness the person
who | 458 |
|
administered the test to which the records pertain, the person | 459 |
|
under whose
supervision the test was administered, the custodian | 460 |
|
of the records, the
person who made the records, or the person | 461 |
|
under whose supervision the records
were made. | 462 |
| (3)(a) If the testimonial privilege described in division | 463 |
|
(B)(1) of this section does not apply as provided in division | 464 |
|
(B)(1)(a)(iii) of this section, a physician or dentist may be | 465 |
|
compelled to testify or to submit to discovery under the Rules of | 466 |
|
Civil Procedure only as to a communication made to the physician | 467 |
|
or dentist by the patient in question in that relation, or the | 468 |
|
physician's or
dentist's advice to the
patient in question, that | 469 |
|
related causally or historically to
physical or mental injuries | 470 |
|
that are relevant to issues in the
medical claim, dental claim, | 471 |
|
chiropractic claim, or optometric
claim, action for wrongful | 472 |
|
death, other civil action, or claim
under Chapter 4123. of the | 473 |
|
Revised Code. | 474 |
| (b) If the testimonial privilege described in division
(B)(1) | 475 |
| of this section
does not apply to a physician or dentist as | 476 |
|
provided in division
(B)(1)(c) of
this section, the physician or | 477 |
|
dentist, in lieu of personally testifying as to
the results of the | 478 |
|
test in question, may submit a certified copy of those
results, | 479 |
|
and, upon its submission, the certified copy is qualified as | 480 |
|
authentic
evidence and may be admitted as evidence in accordance | 481 |
|
with the Rules of
Evidence. Division (A) of section 2317.422 of | 482 |
|
the Revised Code does not apply
to any certified copy of results | 483 |
|
submitted in accordance with this division.
Nothing in this | 484 |
|
division shall be construed to limit the right of any party to | 485 |
|
call as a witness the person who administered the test in | 486 |
|
question, the person
under whose supervision the test was | 487 |
|
administered, the custodian of the
results
of the test, the person | 488 |
|
who compiled the results, or the person under whose
supervision | 489 |
|
the results were compiled. | 490 |
| (5)(a) As used in divisions (B)(1) to (4) of this
section, | 496 |
|
"communication" means acquiring, recording, or transmitting any | 497 |
|
information, in any manner, concerning any facts, opinions, or | 498 |
|
statements necessary to enable a physician or dentist to
diagnose, | 499 |
|
treat, prescribe, or act for a patient. A
"communication" may | 500 |
|
include, but is not limited to, any medical
or dental, office, or | 501 |
|
hospital communication such as a record,
chart, letter, | 502 |
|
memorandum, laboratory test and results, x-ray,
photograph, | 503 |
|
financial statement, diagnosis, or prognosis. | 504 |
| (i)
"Ambulatory care facility" means a facility that
provides | 510 |
|
medical, diagnostic, or surgical treatment to patients
who do not | 511 |
|
require hospitalization, including a dialysis center,
ambulatory | 512 |
|
surgical facility, cardiac catheterization facility,
diagnostic | 513 |
|
imaging center, extracorporeal shock wave lithotripsy
center, home | 514 |
|
health agency, inpatient hospice, birthing center,
radiation | 515 |
|
therapy center, emergency facility, and an urgent care
center. | 516 |
|
"Ambulatory health care facility" does not include the
private | 517 |
|
office of a physician or dentist, whether the office is
for an | 518 |
|
individual or group practice. | 519 |
| (v)
"Long-term care facility" means a nursing home, | 527 |
|
residential care facility, or home
for the aging,
as those terms | 528 |
|
are defined in section 3721.01 of the Revised Code; an adult care | 529 |
|
facility, as defined in section 3722.01
of the Revised Code; a | 530 |
|
nursing facility or intermediate care facility for the mentally | 531 |
|
retarded, as those terms are defined in section 5111.20 of the | 532 |
|
Revised Code; a facility or portion of a facility certified as a | 533 |
|
skilled nursing facility under Title XVIII of the
"Social
Security | 534 |
|
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended. | 535 |
| (7) Nothing in divisions (B)(1) to (6)
of this section | 544 |
|
affects, or shall be construed as affecting, the immunity from | 545 |
|
civil liability conferred by section 307.628 of the Revised Code | 546 |
| or the immunity from civil liability conferred by section 2305.33 | 547 |
| of the
Revised Code
upon physicians who report an employee's use | 548 |
| of a
drug of abuse,
or a condition of an employee other than one | 549 |
|
involving the use of
a drug of abuse, to the employer of the | 550 |
|
employee in accordance
with division (B) of that section. As used | 551 |
|
in division
(B)(7) of this section,
"employee,"
"employer," and | 552 |
|
"physician" have the same meanings as
in section 2305.33 of the | 553 |
|
Revised Code. | 554 |
| (C)(1) A cleric, when the cleric remains accountable to
the | 555 |
| authority
of that cleric's church, denomination, or sect, | 556 |
| concerning a
confession
made, or any information confidentially | 557 |
| communicated,
to the
cleric for
a
religious counseling purpose in | 558 |
| the
cleric's professional character. The cleric
may testify
by | 559 |
|
express consent of the person making the communication, except | 560 |
|
when the disclosure of the information is in violation of a sacred | 561 |
|
trust and except that, if the person voluntarily testifies or is | 562 |
| deemed by division (A)(4)(c) of section 2151.421 of the Revised | 563 |
| Code to have waived any testimonial privilege under this division, | 564 |
| the cleric may be compelled to testify on the same subject except | 565 |
| when disclosure of the information is in violation of a sacred | 566 |
| trust. | 567 |
| (F) A person who, if a party, would be restricted
under | 593 |
|
section 2317.03 of the Revised Code, when the
property or thing is | 594 |
|
sold or transferred by an executor,
administrator, guardian, | 595 |
|
trustee, heir, devisee, or legatee,
shall be restricted in the | 596 |
|
same manner in any action or
proceeding concerning the property or | 597 |
|
thing. | 598 |
| (G)(1) A school guidance counselor who holds a valid
educator | 599 |
| license from the state board of education as
provided for
in | 600 |
| section 3319.22 of the Revised Code, a person
licensed under | 601 |
|
Chapter 4757. of the Revised Code
as a professional clinical | 602 |
|
counselor, professional counselor,
social worker, independent | 603 |
|
social worker, marriage and family therapist or independent | 604 |
| marriage and family therapist, or registered under Chapter 4757. | 605 |
| of the Revised
Code as a
social work assistant concerning a | 606 |
| confidential
communication received from a
client in that relation | 607 |
| or
the
person's advice to a client unless any of
the following | 608 |
| applies: | 609 |
| (H) A mediator acting under a mediation order issued under | 643 |
|
division (A) of section 3109.052 of the Revised Code or otherwise | 644 |
|
issued in any proceeding for divorce, dissolution, legal | 645 |
|
separation, annulment, or the allocation of parental rights and | 646 |
|
responsibilities for the care of children, in any action or | 647 |
|
proceeding, other than a criminal, delinquency, child abuse,
child | 648 |
|
neglect, or dependent child action or proceeding, that is
brought | 649 |
|
by or against either parent who takes part in mediation
in | 650 |
|
accordance with the order and that pertains to the mediation | 651 |
|
process, to any information discussed or presented in the | 652 |
|
mediation process, to the allocation of parental rights and | 653 |
|
responsibilities for the care of the parents' children, or to the | 654 |
|
awarding of parenting time rights in relation to their children; | 655 |
| (I) A communications assistant, acting within the scope of | 656 |
|
the communication assistant's authority, when providing | 657 |
|
telecommunications relay service
pursuant to section 4931.35 of | 658 |
|
the Revised Code or Title II of
the
"Communications Act of 1934," | 659 |
|
104 Stat. 366 (1990), 47 U.S.C.
225, concerning a communication | 660 |
|
made through a telecommunications
relay service.
Nothing in this | 661 |
|
section shall limit the obligation of a
communications assistant | 662 |
|
to divulge information or testify when mandated by
federal law or | 663 |
|
regulation or pursuant to subpoena in a criminal proceeding. | 664 |
| (J)(1) A chiropractor in a civil proceeding concerning a | 667 |
|
communication made to the chiropractor by a patient in that | 668 |
|
relation or the
chiropractor's advice to a patient, except as | 669 |
|
otherwise provided in this
division. The testimonial privilege | 670 |
|
established under this division does not
apply, and a chiropractor | 671 |
|
may testify or may be compelled
to testify, in any civil action, | 672 |
|
in accordance with the discovery
provisions of the Rules of Civil | 673 |
|
Procedure in
connection with a
civil action, or in connection with | 674 |
|
a claim under Chapter 4123.
of the Revised Code, under any of the | 675 |
|
following
circumstances: | 676 |
| (c) If a medical claim, dental claim, chiropractic
claim, or | 682 |
|
optometric claim, as defined in section 2305.113 of the
Revised | 683 |
|
Code, an action for wrongful death, any other type
of
civil | 684 |
|
action, or a claim under Chapter 4123. of the Revised
Code
is | 685 |
|
filed by the patient, the personal representative of the
estate of | 686 |
|
the patient if deceased, or the patient's guardian
or other legal | 687 |
|
representative. | 688 |
| (2) If the testimonial privilege described in division
(J)(1) | 689 |
| of this section does not apply as provided in division
(J)(1)(c) | 690 |
| of this section, a chiropractor may be
compelled to
testify or to | 691 |
| submit to discovery under the Rules of
Civil
Procedure only as to | 692 |
| a communication made to the
chiropractor by
the patient in | 693 |
| question in that relation, or the
chiropractor's
advice to the | 694 |
|
patient in question, that related causally or
historically to | 695 |
|
physical or mental injuries that are relevant to
issues in the | 696 |
|
medical claim, dental claim, chiropractic claim, or
optometric | 697 |
|
claim, action for wrongful death, other civil action,
or claim | 698 |
|
under Chapter 4123. of the Revised Code. | 699 |
| (4) As used in this division,
"communication" means | 703 |
|
acquiring,
recording, or transmitting any information, in any | 704 |
|
manner, concerning
any facts, opinions, or statements necessary to | 705 |
|
enable a chiropractor to
diagnose, treat, or act for a
patient.
A | 706 |
|
communication may
include, but is not limited to, any | 707 |
|
chiropractic, office, or
hospital communication such as a record, | 708 |
|
chart, letter,
memorandum, laboratory test and results, x-ray, | 709 |
|
photograph,
financial statement, diagnosis, or prognosis. | 710 |
| Section 3. The General Assembly declares its intent that the | 803 |
| amendments made by this act to sections 2307.71 and 2307.73 of the | 804 |
| Revised Code are not intended to be substantive but are intended | 805 |
| to clarify the General Assembly's original intent in enacting the | 806 |
| Ohio Product Liability Act, sections 2307.71 to 2307.80 of the | 807 |
| Revised Code, as initially expressed in Section 3 of Am. Sub. S.B. | 808 |
| 80 of the 125th General Assembly, to abrogate all common law | 809 |
| product liability causes of action including common law public | 810 |
| nuisance causes of action, regardless of how the claim is | 811 |
| described, styled, captioned, characterized, or designated, | 812 |
| including claims against a manufacturer or supplier for a public | 813 |
| nuisance allegedly caused by a manufacturer's or supplier's | 814 |
| product. | 815 |
| Section 4. The General Assembly declares its intent that the | 816 |
| amendments made by this act to section 2307.73 of the Revised Code | 817 |
| are intended to clarify that section 2307.73 of the Revised Code | 818 |
| is intended to follow the Ohio Supreme Court's holdings in | 819 |
| Sutowski v. Eli Lilly & Co. (1998), 82 Ohio St.3d 347, and in | 820 |
| Horton v. Harwick Chemical Corp. (1995), 73 Ohio St. 3d 679, that | 821 |
| a plaintiff in a product liability claim must identify the | 822 |
| particular manufacturer of the product that allegedly caused the | 823 |
| plaintiff's harm in order to maintain the claim. | 824 |
| Section 6. The General Assembly declares that the | 830 |
| attorney-client privilege is a substantial right and that it is | 831 |
| the public policy of Ohio that all communications between an | 832 |
| attorney and a client in that relation are worthy of the | 833 |
| protection of privilege, and further that where it is alleged that | 834 |
| the attorney aided or furthered an ongoing or future commission of | 835 |
| insurance bad faith by the client, that the party seeking waiver | 836 |
| of the privilege must make a prima facie showing that the | 837 |
| privilege should be waived and the court should conduct an in | 838 |
| camera inspection of disputed communications. The common law | 839 |
| established in Boone v. Vanliner Ins. Co. (2001), 91 Ohio St.3d | 840 |
| 209, Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, | 841 |
| and Peyko v. Frederick (1986), 25 Ohio St.3d 164, is modified | 842 |
| accordingly to provide for judicial review regarding the | 843 |
| privilege. | 844 |
| Section 7. Section 2317.02 of the Revised Code is presented | 845 |
| in
this act as a composite of the section as amended by Sub. H.B. | 846 |
| 144, Sub. S.B. 8, and Am. Sub. S.B. 17 of
the 126th General | 847 |
| Assembly. The General Assembly, applying the
principle stated in | 848 |
| division (B) of section 1.52 of the Revised
Code that amendments | 849 |
| are to be harmonized if reasonably capable of
simultaneous | 850 |
| operation, finds that the composite is the resulting
version of | 851 |
| the section in effect prior to the effective date of
the section | 852 |
| as presented in this act. | 853 |