(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. However, if the
client | 14 |
voluntarily
testifies or is deemed by section 2151.421 of
the | 15 |
Revised Code to
have waived any testimonial privilege under
this | 16 |
division, the
attorney may be compelled to testify on the
same | 17 |
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, and the | 24 |
dispute addresses the competency of the deceased client when the | 25 |
deceased client executed a document that is the basis of the | 26 |
dispute or whether the deceased client was a victim of fraud, | 27 |
undue influence, or duress when the deceased client executed a | 28 |
document that is the basis of the dispute. | 29 |
(B)(1) A physician or a dentist concerning a communication | 30 |
made to the physician or dentist by a patient in that relation or | 31 |
the
physician's or dentist's advice to a
patient, except as | 32 |
otherwise provided in this division, division (B)(2), and
division | 33 |
(B)(3) of this section, and except that, if the patient
is deemed | 34 |
by section 2151.421 of the Revised Code to have waived
any | 35 |
testimonial privilege under this division, the physician may
be | 36 |
compelled to testify on the same subject. | 37 |
(iii) If a medical claim, dental claim, chiropractic
claim, | 50 |
or optometric claim, as defined in section 2305.113 of the
Revised | 51 |
Code, an action for wrongful death, any other type of
civil | 52 |
action, or a claim under Chapter 4123. of the Revised Code
is | 53 |
filed by the patient, the personal representative of the
estate of | 54 |
the patient if deceased, or the patient's guardian
or other legal | 55 |
representative. | 56 |
(b) In any civil action concerning court-ordered treatment
or | 57 |
services
received by a patient, if the court-ordered treatment
or | 58 |
services were ordered
as part of a case plan journalized under | 59 |
section 2151.412 of the Revised Code or the
court-ordered | 60 |
treatment or services are necessary or relevant to dependency, | 61 |
neglect, or abuse or temporary or permanent custody proceedings | 62 |
under
Chapter 2151. of the Revised Code. | 63 |
(c) In any criminal action concerning any test or the
results | 64 |
of any test that determines the presence or concentration
of | 65 |
alcohol,
a drug of abuse, a combination of them, a controlled | 66 |
substance, or a metabolite of a controlled substance in the | 67 |
patient's whole blood, blood serum or plasma, breath, urine, or | 68 |
other bodily substance at any
time
relevant to the criminal | 69 |
offense in question. | 70 |
(d) In any criminal action against a physician
or dentist.
In | 71 |
such an action, the testimonial privilege
established under
this | 72 |
division does not prohibit the admission
into evidence, in | 73 |
accordance with the
Rules of
Evidence, of a patient's
medical or | 74 |
dental records or other communications between a
patient and the | 75 |
physician or dentist that are related to the
action and obtained | 76 |
by subpoena, search warrant, or other lawful
means. A court that | 77 |
permits or compels a physician or dentist
to testify in such an | 78 |
action or permits the introduction into
evidence of patient | 79 |
records or other communications in such an
action shall require | 80 |
that appropriate measures be taken to
ensure that the | 81 |
confidentiality of any patient named or
otherwise identified in | 82 |
the records is maintained. Measures to
ensure confidentiality
that | 83 |
may be taken by the court include
sealing its records or
deleting | 84 |
specific information from its
records. | 85 |
(e)(i) If the communication was between a patient who has | 86 |
since died and the deceased patient's physician or dentist, the | 87 |
communication is relevant to a dispute between parties who claim | 88 |
through that deceased patient, regardless of whether the claims | 89 |
are by testate or intestate succession or by inter vivos | 90 |
transaction, and the dispute addresses the competency of the | 91 |
deceased patient when the deceased patient executed a document | 92 |
that is the basis of the dispute or whether the deceased patient | 93 |
was a victim of fraud, undue influence, or duress when the | 94 |
deceased patient executed a document that is the basis of the | 95 |
dispute. | 96 |
(ii) If neither the spouse of a patient nor the executor or | 97 |
administrator of that patient's estate gives consent under | 98 |
division (B)(1)(a)(ii) of this section, testimony or the | 99 |
disclosure of the patient's medical records by a physician, | 100 |
dentist, or other health care provider under division (B)(1)(e)(i) | 101 |
of this section is a permitted use or disclosure of protected | 102 |
health information, as defined in 45 C.F.R. 160.103, and an | 103 |
authorization or opportunity to be heard shall not be required. | 104 |
(v) A person to whom protected health information is | 111 |
disclosed under division (B)(1)(e)(i) of this section shall not | 112 |
use or disclose the protected health information for any purpose | 113 |
other than the litigation or proceeding for which the information | 114 |
was requested and shall return the protected health information to | 115 |
the covered entity or destroy the protected health information, | 116 |
including all copies made, at the conclusion of the litigation or | 117 |
proceeding. | 118 |
(2)(a) If any law enforcement officer submits a written | 119 |
statement to a health
care provider that states that an official | 120 |
criminal investigation has begun
regarding a specified person or | 121 |
that a criminal action or proceeding has been
commenced against a | 122 |
specified person, that requests the provider to supply to
the | 123 |
officer copies of any records the provider possesses that pertain | 124 |
to any
test or the results of any test administered to the | 125 |
specified person to
determine the presence or concentration of | 126 |
alcohol, a drug of abuse, a combination of them, a controlled | 127 |
substance, or a metabolite of a controlled substance in the | 128 |
person's whole blood, blood serum or plasma, breath, or urine at | 129 |
any time
relevant to the
criminal offense in question, and that | 130 |
conforms to section
2317.022 of the Revised Code, the provider, | 131 |
except to the extent
specifically
prohibited by any law of this | 132 |
state or of the United
States, shall supply to
the officer a copy | 133 |
of any of the requested
records the provider possesses. If
the | 134 |
health care provider does
not possess any of the requested | 135 |
records, the
provider shall give
the officer a written statement | 136 |
that indicates that the
provider
does not possess any of the | 137 |
requested records. | 138 |
(b) If a health care provider possesses any records of the | 139 |
type described in
division (B)(2)(a) of this section regarding the | 140 |
person in question at any
time relevant to the criminal offense in | 141 |
question, in lieu of personally
testifying as to the results of | 142 |
the test in question, the custodian of the
records may submit a | 143 |
certified copy of the records, and, upon its submission,
the | 144 |
certified copy is qualified as authentic evidence and may be | 145 |
admitted as
evidence in accordance with the Rules of Evidence. | 146 |
Division (A) of section
2317.422 of the Revised Code does not | 147 |
apply to any certified copy of records
submitted in accordance | 148 |
with this division. Nothing in this division shall be
construed
to | 149 |
limit the right of any party to call as a witness the person
who | 150 |
administered the test to which the records pertain, the person | 151 |
under whose
supervision the test was administered, the custodian | 152 |
of the records, the
person who made the records, or the person | 153 |
under whose supervision the records
were made. | 154 |
(3)(a) If the testimonial privilege described in division | 155 |
(B)(1) of this section does not apply as provided in division | 156 |
(B)(1)(a)(iii) of this section, a physician or dentist may be | 157 |
compelled to testify or to submit to discovery under the Rules of | 158 |
Civil Procedure only as to a communication made to the physician | 159 |
or dentist by the patient in question in that relation, or the | 160 |
physician's or
dentist's advice to the
patient in question, that | 161 |
related causally or historically to
physical or mental injuries | 162 |
that are relevant to issues in the
medical claim, dental claim, | 163 |
chiropractic claim, or optometric
claim, action for wrongful | 164 |
death, other civil action, or claim
under Chapter 4123. of the | 165 |
Revised Code. | 166 |
(b) If the testimonial privilege described in division
(B)(1) | 167 |
of this section
does not apply to a physician or dentist as | 168 |
provided in division
(B)(1)(c) of
this section, the physician or | 169 |
dentist, in lieu of personally testifying as to
the results of the | 170 |
test in question, may submit a certified copy of those
results, | 171 |
and, upon its submission, the certified copy is qualified as | 172 |
authentic
evidence and may be admitted as evidence in accordance | 173 |
with the Rules of
Evidence. Division (A) of section 2317.422 of | 174 |
the Revised Code does not apply
to any certified copy of results | 175 |
submitted in accordance with this division.
Nothing in this | 176 |
division shall be construed to limit the right of any party to | 177 |
call as a witness the person who administered the test in | 178 |
question, the person
under whose supervision the test was | 179 |
administered, the custodian of the
results
of the test, the person | 180 |
who compiled the results, or the person under whose
supervision | 181 |
the results were compiled. | 182 |
(5)(a) As used in divisions (B)(1) to (4) of this
section, | 188 |
"communication" means acquiring, recording, or transmitting any | 189 |
information, in any manner, concerning any facts, opinions, or | 190 |
statements necessary to enable a physician or dentist to
diagnose, | 191 |
treat, prescribe, or act for a patient. A
"communication" may | 192 |
include, but is not limited to, any medical
or dental, office, or | 193 |
hospital communication such as a record,
chart, letter, | 194 |
memorandum, laboratory test and results, x-ray,
photograph, | 195 |
financial statement, diagnosis, or prognosis. | 196 |
(i)
"Ambulatory care facility" means a facility that
provides | 202 |
medical, diagnostic, or surgical treatment to patients
who do not | 203 |
require hospitalization, including a dialysis center,
ambulatory | 204 |
surgical facility, cardiac catheterization facility,
diagnostic | 205 |
imaging center, extracorporeal shock wave lithotripsy
center, home | 206 |
health agency, inpatient hospice, birthing center,
radiation | 207 |
therapy center, emergency facility, and an urgent care
center. | 208 |
"Ambulatory health care facility" does not include the
private | 209 |
office of a physician or dentist, whether the office is
for an | 210 |
individual or group practice. | 211 |
(v)
"Long-term care facility" means a nursing home, | 219 |
residential care facility, or home
for the aging,
as those terms | 220 |
are defined in section 3721.01 of the Revised Code; an adult care | 221 |
facility, as defined in section 3722.01
of the Revised Code; a | 222 |
nursing facility or intermediate care facility for the mentally | 223 |
retarded, as those terms are defined in section 5111.20 of the | 224 |
Revised Code; a facility or portion of a facility certified as a | 225 |
skilled nursing facility under Title XVIII of the
"Social
Security | 226 |
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended. | 227 |
(7) Nothing in divisions (B)(1) to (6)
of this section | 236 |
affects, or shall be construed as affecting, the immunity from | 237 |
civil liability conferred by section 307.628 of the Revised Code | 238 |
or the immunity from civil liability conferred by section 2305.33 | 239 |
of the
Revised Code
upon physicians who report an employee's use | 240 |
of a
drug of abuse,
or a condition of an employee other than one | 241 |
involving the use of
a drug of abuse, to the employer of the | 242 |
employee in accordance
with division (B) of that section. As used | 243 |
in division
(B)(7) of this section,
"employee,"
"employer," and | 244 |
"physician" have the same meanings as
in section 2305.33 of the | 245 |
Revised Code. | 246 |
(C)(1) A cleric, when the cleric remains accountable to
the | 247 |
authority
of that cleric's church, denomination, or sect, | 248 |
concerning a
confession
made, or any information confidentially | 249 |
communicated,
to the
cleric for
a
religious counseling purpose in | 250 |
the
cleric's professional character. The cleric
may testify
by | 251 |
express consent of the person making the communication, except | 252 |
when the disclosure of the information is in violation of a sacred | 253 |
trust and except that, if the person voluntarily testifies or is | 254 |
deemed by division (A)(4)(c) of section 2151.421 of the Revised | 255 |
Code to have waived any testimonial privilege under this division, | 256 |
the cleric may be compelled to testify on the same subject except | 257 |
when disclosure of the information is in violation of a sacred | 258 |
trust. | 259 |
(F) A person who, if a party, would be restricted
under | 285 |
section 2317.03 of the Revised Code, when the
property or thing is | 286 |
sold or transferred by an executor,
administrator, guardian, | 287 |
trustee, heir, devisee, or legatee,
shall be restricted in the | 288 |
same manner in any action or
proceeding concerning the property or | 289 |
thing. | 290 |
(G)(1) A school guidance counselor who holds a valid
educator | 291 |
license from the state board of education as
provided for
in | 292 |
section 3319.22 of the Revised Code, a person
licensed under | 293 |
Chapter 4757. of the Revised Code
as a professional clinical | 294 |
counselor, professional counselor,
social worker, independent | 295 |
social worker, marriage and family therapist or independent | 296 |
marriage and family therapist, or registered under Chapter 4757. | 297 |
of the Revised
Code as a
social work assistant concerning a | 298 |
confidential
communication received from a
client in that relation | 299 |
or
the
person's advice to a client unless any of
the following | 300 |
applies: | 301 |
(H) A mediator acting under a mediation order issued under | 335 |
division (A) of section 3109.052 of the Revised Code or otherwise | 336 |
issued in any proceeding for divorce, dissolution, legal | 337 |
separation, annulment, or the allocation of parental rights and | 338 |
responsibilities for the care of children, in any action or | 339 |
proceeding, other than a criminal, delinquency, child abuse,
child | 340 |
neglect, or dependent child action or proceeding, that is
brought | 341 |
by or against either parent who takes part in mediation
in | 342 |
accordance with the order and that pertains to the mediation | 343 |
process, to any information discussed or presented in the | 344 |
mediation process, to the allocation of parental rights and | 345 |
responsibilities for the care of the parents' children, or to the | 346 |
awarding of parenting time rights in relation to their children; | 347 |
(I) A communications assistant, acting within the scope of | 348 |
the communication assistant's authority, when providing | 349 |
telecommunications relay service
pursuant to section 4931.35 of | 350 |
the Revised Code or Title II of
the
"Communications Act of 1934," | 351 |
104 Stat. 366 (1990), 47 U.S.C.
225, concerning a communication | 352 |
made through a telecommunications
relay service.
Nothing in this | 353 |
section shall limit the obligation of a
communications assistant | 354 |
to divulge information or testify when mandated by
federal law or | 355 |
regulation or pursuant to subpoena in a criminal proceeding. | 356 |
(J)(1) A chiropractor in a civil proceeding concerning a | 359 |
communication made to the chiropractor by a patient in that | 360 |
relation or the
chiropractor's advice to a patient, except as | 361 |
otherwise provided in this
division. The testimonial privilege | 362 |
established under this division does not
apply, and a chiropractor | 363 |
may testify or may be compelled
to testify, in any civil action, | 364 |
in accordance with the discovery
provisions of the Rules of Civil | 365 |
Procedure in
connection with a
civil action, or in connection with | 366 |
a claim under Chapter 4123.
of the Revised Code, under any of the | 367 |
following
circumstances: | 368 |
(c) If a medical claim, dental claim, chiropractic
claim, or | 374 |
optometric claim, as defined in section 2305.113 of the
Revised | 375 |
Code, an action for wrongful death, any other type
of
civil | 376 |
action, or a claim under Chapter 4123. of the Revised
Code
is | 377 |
filed by the patient, the personal representative of the
estate of | 378 |
the patient if deceased, or the patient's guardian
or other legal | 379 |
representative. | 380 |
(2) If the testimonial privilege described in division
(J)(1) | 381 |
of this section does not apply as provided in division
(J)(1)(c) | 382 |
of this section, a chiropractor may be
compelled to
testify or to | 383 |
submit to discovery under the Rules of
Civil
Procedure only as to | 384 |
a communication made to the
chiropractor by
the patient in | 385 |
question in that relation, or the
chiropractor's
advice to the | 386 |
patient in question, that related causally or
historically to | 387 |
physical or mental injuries that are relevant to
issues in the | 388 |
medical claim, dental claim, chiropractic claim, or
optometric | 389 |
claim, action for wrongful death, other civil action,
or claim | 390 |
under Chapter 4123. of the Revised Code. | 391 |
(4) As used in this division,
"communication" means | 395 |
acquiring,
recording, or transmitting any information, in any | 396 |
manner, concerning
any facts, opinions, or statements necessary to | 397 |
enable a chiropractor to
diagnose, treat, or act for a
patient.
A | 398 |
communication may
include, but is not limited to, any | 399 |
chiropractic, office, or
hospital communication such as a record, | 400 |
chart, letter,
memorandum, laboratory test and results, x-ray, | 401 |
photograph,
financial statement, diagnosis, or prognosis. | 402 |
(4) As used in division (M) of this section, "employee | 518 |
organization" means any labor union or bona fide organization in | 519 |
which employees participate and that exists for the purpose, in | 520 |
whole or in part, of dealing with employers concerning grievances, | 521 |
labor disputes, wages, hours, terms, and other conditions of | 522 |
employment. | 523 |
Section 3. Section 2317.02 of the Revised Code is presented | 526 |
in
this act as a composite of the section as amended by Sub. H.B. | 527 |
144, Sub. S.B. 8, and Am. Sub. S.B. 17 of
the 126th General | 528 |
Assembly. The General Assembly, applying the
principle stated in | 529 |
division (B) of section 1.52 of the Revised
Code that amendments | 530 |
are to be harmonized if reasonably capable of
simultaneous | 531 |
operation, finds that the composite is the resulting
version of | 532 |
the section in effect prior to the effective date of
the section | 533 |
as presented in this act. | 534 |