H. B. No. 103 As Introduced

As Introduced

130th General Assembly

Regular Session

2013-2014

H. B. No. 103

Representative Huffman

Cosponsors: Representatives Becker, Buchy, Conditt, Grossman, Hottinger, Pillich, Stebelton, Wachtmann

A BILL

To amend section 2305.113 and to enact section

2323.451 of the Revised Code to specify the manner

of sending a notice of intent to file a medical

claim and to provide a procedure for the discovery

of other potential defendants within a specified

period after the filing of a medical claim.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That section 2305.113 be amended and section	7
2323.451 of the Revised Code be enacted to read as follows:	8

Sec. 2305.113. (A) Except as otherwise provided in this	9
section, an action upon a medical, dental, optometric, or	10
chiropractic claim shall be commenced within one year after the	11
cause of action accrued.	12

(B)(1) If prior to the expiration of the one-year period	13
specified in division (A) of this section, a claimant who	14
allegedly possesses a medical, dental, optometric, or chiropractic	15
claim gives to the person who is the subject of that claim written	16
notice that the claimant is considering bringing an action upon	17
that claim, that action may be commenced against the person	18
notified at any time within one hundred eighty days after the	19
notice is so given.	20

(2) A claimant who allegedly possesses a medical claim and	21
who intends to give to the person who is the subject of that claim	22
the written notice described in division (B)(1) of this section	23
shall send the notice by certified mail, return receipt requested,	24
addressed to any of the following:	25

(a) The person's residence;

(b) The person's professional practice;

(d) The address of the person on file with the state medical	29
board or other appropriate agency that issued the person's	30
professional license.	31

(3) An insurance company shall not consider the existence or	32
nonexistence of a written notice described in division (B)(1) of	33
this section in setting the liability insurance premium rates that	34
the company may charge the company's insured person who is	35
notified by that written notice.	36

(C) Except as to persons within the age of minority or of	37
unsound mind as provided by section 2305.16 of the Revised Code,	38
and except as provided in division (D) of this section, both of	39
the following apply:	40

(1) No action upon a medical, dental, optometric, or	41
chiropractic claim shall be commenced more than four years after	42
the occurrence of the act or omission constituting the alleged	43
basis of the medical, dental, optometric, or chiropractic claim.	44

(2) If an action upon a medical, dental, optometric, or	45
chiropractic claim is not commenced within four years after the	46
occurrence of the act or omission constituting the alleged basis	47
of the medical, dental, optometric, or chiropractic claim, then,	48
any action upon that claim is barred.	49

(D)(1) If a person making a medical claim, dental claim,	50
optometric claim, or chiropractic claim, in the exercise of	51
reasonable care and diligence, could not have discovered the	52
injury resulting from the act or omission constituting the alleged	53
basis of the claim within three years after the occurrence of the	54
act or omission, but, in the exercise of reasonable care and	55
diligence, discovers the injury resulting from that act or	56
omission before the expiration of the four-year period specified	57
in division (C)(1) of this section, the person may commence an	58
action upon the claim not later than one year after the person	59
discovers the injury resulting from that act or omission.	60

(2) If the alleged basis of a medical claim, dental claim,	61
optometric claim, or chiropractic claim is the occurrence of an	62
act or omission that involves a foreign object that is left in the	63
body of the person making the claim, the person may commence an	64
action upon the claim not later than one year after the person	65
discovered the foreign object or not later than one year after the	66
person, with reasonable care and diligence, should have discovered	67
the foreign object.	68

(3) A person who commences an action upon a medical claim,	69
dental claim, optometric claim, or chiropractic claim under the	70
circumstances described in division (D)(1) or (2) of this section	71
has the affirmative burden of proving, by clear and convincing	72
evidence, that the person, with reasonable care and diligence,	73
could not have discovered the injury resulting from the act or	74
omission constituting the alleged basis of the claim within the	75
three-year period described in division (D)(1) of this section or	76
within the one-year period described in division (D)(2) of this	77
section, whichever is applicable.	78

(E) As used in this section:

(1) "Hospital" includes any person, corporation, association,	80
board, or authority that is responsible for the operation of any	81
hospital licensed or registered in the state, including, but not	82
limited to, those that are owned or operated by the state,	83
political subdivisions, any person, any corporation, or any	84
combination of the state, political subdivisions, persons, and	85
corporations. "Hospital" also includes any person, corporation,	86
association, board, entity, or authority that is responsible for	87
the operation of any clinic that employs a full-time staff of	88
physicians practicing in more than one recognized medical	89
specialty and rendering advice, diagnosis, care, and treatment to	90
individuals. "Hospital" does not include any hospital operated by	91
the government of the United States or any of its branches.	92

(2) "Physician" means a person who is licensed to practice	93
medicine and surgery or osteopathic medicine and surgery by the	94
state medical board or a person who otherwise is authorized to	95
practice medicine and surgery or osteopathic medicine and surgery	96
in this state.	97

(3) "Medical claim" means any claim that is asserted in any	98
civil action against a physician, podiatrist, hospital, home, or	99
residential facility, against any employee or agent of a	100
physician, podiatrist, hospital, home, or residential facility, or	101
against a licensed practical nurse, registered nurse, advanced	102
practice registered nurse, physical therapist, physician	103
assistant, emergency medical technician-basic, emergency medical	104
technician-intermediate, or emergency medical	105
technician-paramedic, and that arises out of the medical	106
diagnosis, care, or treatment of any person. "Medical claim"	107
includes the following:	108

(a) Derivative claims for relief that arise from the medical	109
diagnosis, care, or treatment of a person;	110

(b) Claims that arise out of the medical diagnosis, care, or	111
treatment of any person and to which either of the following	112
applies:	113

(i) The claim results from acts or omissions in providing	114
medical care.	115

(ii) The claim results from the hiring, training,	116
supervision, retention, or termination of caregivers providing	117
medical diagnosis, care, or treatment.	118

(c) Claims that arise out of the medical diagnosis, care, or	119
treatment of any person and that are brought under section 3721.17	120
of the Revised Code.	121

(4) "Podiatrist" means any person who is licensed to practice	122
podiatric medicine and surgery by the state medical board.	123

(5) "Dentist" means any person who is licensed to practice	124
dentistry by the state dental board.	125

(6) "Dental claim" means any claim that is asserted in any	126
civil action against a dentist, or against any employee or agent	127
of a dentist, and that arises out of a dental operation or the	128
dental diagnosis, care, or treatment of any person. "Dental claim"	129
includes derivative claims for relief that arise from a dental	130
operation or the dental diagnosis, care, or treatment of a person.	131

(7) "Derivative claims for relief" include, but are not	132
limited to, claims of a parent, guardian, custodian, or spouse of	133
an individual who was the subject of any medical diagnosis, care,	134
or treatment, dental diagnosis, care, or treatment, dental	135
operation, optometric diagnosis, care, or treatment, or	136
chiropractic diagnosis, care, or treatment, that arise from that	137
diagnosis, care, treatment, or operation, and that seek the	138
recovery of damages for any of the following:	139

(a) Loss of society, consortium, companionship, care,	140
assistance, attention, protection, advice, guidance, counsel,	141
instruction, training, or education, or any other intangible loss	142
that was sustained by the parent, guardian, custodian, or spouse;	143

(b) Expenditures of the parent, guardian, custodian, or	144
spouse for medical, dental, optometric, or chiropractic care or	145
treatment, for rehabilitation services, or for other care,	146
treatment, services, products, or accommodations provided to the	147
individual who was the subject of the medical diagnosis, care, or	148
treatment, the dental diagnosis, care, or treatment, the dental	149
operation, the optometric diagnosis, care, or treatment, or the	150
chiropractic diagnosis, care, or treatment.	151

(8) "Registered nurse" means any person who is licensed to	152
practice nursing as a registered nurse by the board of nursing.	153

(9) "Chiropractic claim" means any claim that is asserted in	154
any civil action against a chiropractor, or against any employee	155
or agent of a chiropractor, and that arises out of the	156
chiropractic diagnosis, care, or treatment of any person.	157
"Chiropractic claim" includes derivative claims for relief that	158
arise from the chiropractic diagnosis, care, or treatment of a	159
person.	160

(10) "Chiropractor" means any person who is licensed to	161
practice chiropractic by the state chiropractic board.	162

(11) "Optometric claim" means any claim that is asserted in	163
any civil action against an optometrist, or against any employee	164
or agent of an optometrist, and that arises out of the optometric	165
diagnosis, care, or treatment of any person. "Optometric claim"	166
includes derivative claims for relief that arise from the	167
optometric diagnosis, care, or treatment of a person.	168

(12) "Optometrist" means any person licensed to practice	169
optometry by the state board of optometry.	170

(13) "Physical therapist" means any person who is licensed to	171
practice physical therapy under Chapter 4755. of the Revised Code.	172

(14) "Home" has the same meaning as in section 3721.10 of the	173
Revised Code.	174

(15) "Residential facility" means a facility licensed under	175
section 5123.19 of the Revised Code.	176

(16) "Advanced practice registered nurse" means any certified	177
nurse practitioner, clinical nurse specialist, certified	178
registered nurse anesthetist, or certified nurse-midwife who holds	179
a certificate of authority issued by the board of nursing under	180
Chapter 4723. of the Revised Code.	181

(17) "Licensed practical nurse" means any person who is	182
licensed to practice nursing as a licensed practical nurse by the	183
board of nursing pursuant to Chapter 4723. of the Revised Code.	184

(18) "Physician assistant" means any person who holds a valid	185
certificate to practice issued pursuant to Chapter 4730. of the	186
Revised Code.	187

(19) "Emergency medical technician-basic," "emergency medical	188
technician-intermediate," and "emergency medical	189
technician-paramedic" means any person who is certified under	190
Chapter 4765. of the Revised Code as an emergency medical	191
technician-basic, emergency medical technician-intermediate, or	192
emergency medical technician-paramedic, whichever is applicable.	193

Sec. 2323.451. (A) As used in this section, "medical claim"	194
has the same meaning as in section 2305.113 of the Revised Code.	195

(B) At the time of filing a complaint asserting a medical	196
claim, the plaintiff shall file with the complaint, pursuant to	197
rule 10(D) of the Rules of Civil Procedure, an affidavit of merit	198
relative to each defendant named in the complaint or a motion to	199
extend the period of time to file an affidavit of merit.	200

(C) The plaintiff may conduct discovery as permitted by the	201
Rules of Civil Procedure. Additionally, for a period of one	202
hundred eighty days following the filing of a complaint asserting	203
a medical claim, the plaintiff may seek to discover the existence	204
or identity of any other potential medical claims or defendants	205
that are not included or named in the complaint. Any defendant	206
named in the complaint shall provide the discovery under this	207
division in accordance with the Rules of Civil Procedure.	208

(D) Within one hundred eighty days following the filing of a	209
complaint asserting a medical claim, the plaintiff, in an	210
amendment to the complaint pursuant to rule 15 of the Rules of	211
Civil Procedure, may join in the action any additional medical	212
claim or defendant if the period of limitation applicable to that	213
additional medical claim or defendant had not expired prior to the	214
date the original complaint was filed. The plaintiff shall file an	215
affidavit of merit supporting the joinder of the additional	216
defendant or a motion to extend the period of time to file an	217
affidavit of merit pursuant to rule 10(D) of the Rules of Civil	218
Procedure.	219

(E) If, after more than one hundred eighty days following the	220
filing of a complaint asserting a medical claim, the plaintiff	221
first discovers the existence or identity of a potential medical	222
claim or defendant that is not included or named in the complaint,	223
the period of limitation for a medical claim against that	224
potential defendant commences on the earlier of the date the	225
plaintiff discovers the existence of the medical claim and	226
identity of the potential defendant or the date upon which the	227
plaintiff in the exercise of reasonable care and diligence should	228
have discovered the alleged basis of the medical claim and the	229
identity of the person against whom the medical claim could have	230
been asserted.	231

(F) Divisions (D) and (E) of this section do not modify or	232
affect and shall not be construed as modifying or affecting any	233
provision of the Revised Code or rule of common law that applies	234
to the commencement of the period of limitation for a medical	235
claim upon a cause of action that arises when the plaintiff	236
discovers, or in the exercise of reasonable care and diligence,	237
should have discovered the alleged basis of the medical claim and	238
the identity of the person against whom the medical claim may be	239
asserted.	240

(G) After the expiration of one hundred eighty days following	241
the filing of a complaint asserting a medical claim, the plaintiff	242
shall not join any additional medical claim or defendant to the	243
action unless either of the following applies:	244

(1) The medical claim is for wrongful death, and the period	245
of limitation for the claim under section 2125.02 of the Revised	246
Code has not expired.	247

(2) The existence and identification of the additional	248
medical claim or defendant is discovered in the exercise of	249
reasonable care and diligence under division (E) of this section.	250

Section 2. That existing section 2305.113 of the Revised	251
Code is hereby repealed.	252

Section 3. (A) Section 2323.451 of the Revised Code, as	253
enacted by this act, applies to a civil action that is based upon	254
a medical claim and that is filed on or after the effective date	255
of this act.	256

(B) As used in division (A) of this section, "medical claim"	257
has the same meaning as in section 2305.113 of the Revised Code.	258