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Sub. H. B. No. 412As Reported by the House Civil and Commercial Law CommitteeAs Reported by the House Civil and Commercial Law Committee
124th General Assembly | Regular Session | 2001-2002 |
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REPRESENTATIVES Seitz, Schneider, Schmidt, Kearns, Webster, Raga, Brinkman, DeWine, Setzer, Britton, Husted, Faber, Gilb, Fessler, Hoops, Schaffer, Lendrum, Rhine, Flowers, Olman, Sullivan, Ogg, G. Smith, Trakas, Peterson, Clancy, Callender, Roman, Wolpert, Latta, Womer Benjamin, Calvert, Carey, Kilbane, Reidelbach, Aslanides, Widowfield, Niehaus
A BILL
To amend sections 2305.11, 2315.21, 2711.23, 2711.24,
3721.02,
and
3721.17 and to enact section
5111.411
of the Revised Code relative
to the
results of a
home inspection or nursing
facility
survey,
liability
of a
residential
care facility or a home
for
punitive
damages, and
expansion of the
definition
of
"medical claim" in
the statute of
limitations.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2305.11, 2315.21, 2711.23, 2711.24,
3721.02,
and
3721.17 be amended and section 5111.411
of the
Revised Code be
enacted to read as follows:
Sec. 2305.11. (A) An action for libel, slander, malicious
prosecution,
or false imprisonment, an action for malpractice
other than an
action upon a medical, dental, optometric, or
chiropractic claim,
or an action
upon a statute for a penalty or
forfeiture shall be
commenced within one year
after the cause of
action accrued, provided that an action by an employee
for the
payment of
unpaid minimum wages, unpaid overtime compensation, or
liquidated
damages by reason of the nonpayment of minimum wages
or
overtime
compensation shall be commenced within two years
after
the cause
of action accrued. (B)(1) Subject to division (B)(2) of this
section, an
action
upon a medical, dental, optometric, or
chiropractic claim
shall be
commenced within one year after the
cause of action accrued,
except that, if prior to the
expiration of that one-year
period,
a
claimant who allegedly
possesses a medical, dental, optometric,
or
chiropractic claim
gives to the person who is the subject of
that
claim written
notice that the claimant is considering
bringing an
action upon
that claim, that action may be commenced
against the
person
notified at any time within one hundred eighty
days after
the
notice is so given. (2) Except as to persons within the age of minority
or of
unsound mind, as provided by section 2305.16 of the Revised
Code: (a) In no event shall any
action upon a
medical, dental,
optometric, or chiropractic claim be
commenced
more than four
years after the occurrence
of the act or omission constituting
the
alleged basis of the
medical, dental, optometric, or
chiropractic
claim. (b) If an action upon a medical, dental, optometric, or
chiropractic claim is not commenced within four years
after the
occurrence of the act or omission constituting the alleged basis
of the medical, dental, optometric,
or chiropractic claim, then,
notwithstanding the time when the action
is determined to accrue
under division (B)(1) of this section, any action upon that claim
is barred. (C) A civil action for unlawful abortion pursuant to
section
2919.12 of the Revised Code, a civil action
authorized by division
(H) of section 2317.56 of the Revised Code,
a civil action
pursuant to division (B)(1) or (2) of section
2307.51 of the
Revised Code for performing a dilation and extraction procedure
or
attempting to perform a dilation and extraction procedure in
violation of
section 2919.15 of the Revised Code, and a civil
action pursuant to division
(B)(1) or (2) of section 2307.52 of
the Revised Code for terminating or
attempting to terminate a
human pregnancy after viability in violation of
division (A) or
(B) of section 2919.17 of the Revised Code shall be commenced
within one year after the performance or inducement of the
abortion, within
one year after the attempt to perform or induce
the abortion in violation of
division (A) or (B) of section
2919.17 of the Revised Code, within one year
after the performance
of the dilation and extraction procedure, or, in the
case of a
civil action pursuant to division (B)(2) of section 2307.51 of the
Revised Code, within one year after the attempt to perform the
dilation and
extraction procedure. (D) As used in this section: (1)
"Hospital" includes any person, corporation,
association,
board, or authority that is responsible for the
operation of any
hospital licensed or registered in the state,
including, but not
limited to, those
which
that are owned or operated
by the state,
political subdivisions, any person, any
corporation,
or any
combination thereof.
"Hospital" also
includes any person,
corporation, association, board, entity, or
authority that is
responsible for the operation of any clinic
that
employs a
full-time staff of physicians practicing in more
than
one
recognized medical specialty and rendering advice,
diagnosis,
care, and treatment to individuals.
"Hospital" does
not include
any hospital operated by the government of the United
States or
any of its branches. (2)
"Physician" means a person who is licensed to
practice
medicine and surgery or osteopathic medicine and surgery
by the
state medical board or a person who otherwise is authorized to
practice medicine and surgery or osteopathic medicine and surgery
in this
state. (3)
"Medical claim" means any claim that is asserted in
any
civil action against a physician, podiatrist,
or hospital,
home,
or residential facility,
against
any employee or agent of a
physician, podiatrist,
or
hospital,
home, or residential facility,
or
against a registered nurse or
physical therapist,
and
that
arises
out of the medical diagnosis, care, or treatment
of
any
person.
"Medical claim" includes
derivative
the following: (a) Derivative claims for
relief
that arise
from the medical
diagnosis, care, or treatment
of a
person; (b) Claims resulting from acts or omissions in providing
health care or from the hiring, training, supervision, retention,
or termination of health caregivers; (c) Claims brought under section 3721.17 of the Revised
Code. (4)
"Podiatrist" means any person who is licensed to
practice
podiatric medicine and surgery by the state medical
board. (5)
"Dentist" means any person who is licensed to practice
dentistry by the state dental board. (6)
"Dental claim" means any claim that is asserted in any
civil action against a dentist, or against any employee or agent
of a dentist, and that arises out of a dental operation or the
dental diagnosis, care, or treatment of any person.
"Dental
claim"
includes derivative claims for relief that arise from a
dental
operation or the dental diagnosis, care, or treatment of a
person. (7)
"Derivative claims for relief" include, but are not
limited to, claims of a parent, guardian, custodian, or spouse of
an individual who was the subject of any medical diagnosis, care,
or treatment, dental diagnosis, care, or treatment, dental
operation, optometric diagnosis, care, or
treatment, or
chiropractic diagnosis, care, or treatment, that arise from that
diagnosis, care, treatment, or operation, and that seek the
recovery of damages for any of the following: (a) Loss of society, consortium, companionship, care,
assistance, attention, protection, advice, guidance, counsel,
instruction, training, or education, or any other intangible loss
that was sustained by the parent, guardian, custodian, or spouse; (b) Expenditures of the parent, guardian, custodian, or
spouse for medical, dental, optometric, or chiropractic care or
treatment, for rehabilitation services, or for other care,
treatment, services, products, or accommodations provided to the
individual who was the subject of the medical diagnosis, care, or
treatment, the dental diagnosis, care, or treatment, the dental
operation, the optometric diagnosis, care, or
treatment, or the
chiropractic diagnosis, care, or treatment. (8)
"Registered nurse" means any person who is licensed to
practice nursing as a registered nurse by the state board of
nursing. (9)
"Chiropractic claim" means any claim that is asserted
in
any civil action against a chiropractor, or against any
employee
or agent of a chiropractor, and that arises out of the
chiropractic diagnosis, care, or treatment of any person.
"Chiropractic claim" includes derivative claims for relief that
arise from the chiropractic diagnosis, care, or treatment of a
person. (10)
"Chiropractor" means any person who is licensed to
practice chiropractic by the chiropractic examining board. (11)
"Optometric claim" means any claim that is asserted
in
any civil action against an optometrist, or against any
employee
or agent of an optometrist, and that arises out of the
optometric
diagnosis, care, or treatment of any person.
"Optometric claim"
includes derivative claims for relief that
arise from the
optometric diagnosis, care, or treatment of a
person. (12)
"Optometrist" means any person licensed to practice
optometry by the state board of optometry. (13)
"Physical therapist" means any person who is licensed
to
practice physical therapy under Chapter 4755. of the Revised
Code. (14) "Home" has the same meaning as in section 3721.10 of
the Revised Code. (15) "Residential facility" means a facility licensed under
section 5123.19 of the Revised Code.
Sec. 2315.21. (A) As used in this section: (1)
"Tort action" means a civil action for damages for
injury
or loss to
person or property.
"Tort
action"
includes a
product
liability
claim for damages for injury or loss
to person
or
property that is
subject to sections 2307.71 to
2307.80
of the
Revised Code, but
does not include a civil
action
for damages for
a breach of
contract or another agreement between
persons. (2)
"Trier of fact" means the jury or, in a
nonjury
action,
the court. (3) "Home" has the same meaning as in section 3721.10 of the
Revised Code. (B) Subject to division (D) of this
section,
punitive or
exemplary damages are not recoverable from a defendant in
question
in a tort action unless both of the following apply: (1) The actions or omissions of that defendant demonstrate
malice, aggravated or egregious fraud, oppression, or insult, or
that defendant as principal or master authorized, participated
in,
or ratified actions or omissions of an agent or servant that
so
demonstrate;. (2) The
plaintiff in
question has adduced proof of actual
damages that resulted from
actions or omissions as described in
division (B)(1) of this
section. (C)(1) In a tort action, the trier of fact shall
determine
the liability of any defendant for punitive or
exemplary damages
and the amount of those damages. (2)
In a tort action, the burden of proof
shall be upon a
plaintiff
in question, by clear and
convincing
evidence,
to
establish that
the plaintiff is entitled to
recover punitive or
exemplary damages. (D) This section does not apply to tort actions against
the
state in the court of claims or to
the extent that another
section
of the Revised Code
expressly provides any of the
following: (1) Punitive or exemplary damages are recoverable from a
defendant in question in a tort action on a basis other than that
the actions or omissions of that defendant demonstrate malice,
aggravated or egregious fraud, oppression, or insult, or on a
basis other than that the defendant in question as principal or
master authorized, participated in, or ratified actions or
omissions of an agent or servant that so demonstrate;. (2) Punitive or exemplary damages are recoverable from a
defendant in question in a tort action irrespective of whether
the
plaintiff in question has adduced proof of actual damages;. (3) The burden of proof upon a plaintiff in question to
recover punitive or exemplary damages from a defendant in
question
in a tort action is one other than clear and convincing
evidence;. (4) Punitive or exemplary damages are not recoverable from
a
defendant in question in a tort action.
(E) When determining the amount of an award of punitive or
exemplary damages against either a home or a residential facility
licensed under section 5123.19 of the Revised Code, the trier of
fact shall consider all of the following:
(1) The ability of the home or residential facility to pay
the award of punitive or exemplary damages based on the home's or
residential facility's assets, income, and net worth;
(2) Whether the amount of punitive or exemplary damages is
sufficient to deter future tortious conduct;
(3) The financial ability of the home or residential
facility, both currently and in the future, to provide
accommodations, personal care services, and skilled nursing care.
Sec. 2711.23. (A) To be valid and enforceable, any
arbitration
agreements pursuant to sections 2711.01 and 2711.22 of
the
Revised Code for controversies involving hospital or medical
care, diagnosis, or treatment
which
that are entered into prior to
rendering such care, diagnosis, or treatment shall include or be
subject to the following conditions: (A)(1) The agreement shall provide that medical or hospital
care, diagnosis, or treatment will be provided whether or not the
patient signs the agreement to arbitrate;.
(B)(2) The agreement shall provide that the patient, or the
patient's spouse, or the personal representative of
his
the
patient's estate in
the event of the patient's death or
incapacity, shall have a
right to withdraw the patient's consent
to arbitrate
his
the
patient's claim by
notifying the physician or
hospital in writing within sixty days
after the patient's
discharge from the hospital for any claim
arising out of
hospitalization, or within sixty days after the
termination of the
physician-patient relationship for the
physical condition involved
for any claim against a physician.
Nothing in this division shall
be construed to mean that the
spouse of a competent patient can
withdraw over the objection of
the patient the consent of the
patient to arbitrate;.
(C)(3) The agreement shall provide that the decision whether
or not to sign the agreement is solely a matter for the patient's
determination without any influence by the physician or hospital;.
(D)(4) The agreement shall, if appropriate, provide, if
appropriate, that its
terms constitute a waiver of any right to a
trial in court, or a
waiver of any right to a trial by jury;.
(E)(5) The agreement shall provide that the arbitration
expenses shall be divided equally between the parties to the
agreement;.
(F)(6) Any arbitration panel shall consist of three persons,
no more than one of whom shall be a physician or the
representative of a hospital;.
(G)(7) The arbitration agreement shall be separate from any
other agreement, consent, or document;.
(H)(8) The agreement shall not be submitted to a patient for
approval when the patient's condition prevents the patient from
making a rational decision whether or not to agree;.
(I)(9) Filing of a medical claim, as defined in division (D)
of section 2305.11 of the Revised Code, within the sixty days
provided for withdrawal of a patient from the arbitration
agreement shall be deemed a withdrawal from
such
that agreement;.
(J)(10) The agreement shall contain a separately stated
notice
that clearly informs the patient of
his
the patient's
rights
under division
(B)(A)(2)
of this section.
(B) As used in this section, the terms "hospital": (1) "Hospital" and
"physician"
shall have the
same meanings
set forth
as in division (D) of
section 2305.11 of the Revised
Code.
(2) "Medical claim" has the same meaning as in division (D)
of section 2305.11 of the Revised Code, except that it does not
include a claim against a home or residential facility or an
employee or agent of a home or residential facility. (3) "Home" has the same meaning as in section 3721.10 of the
Revised Code. (4) "Residential facility" means a facility licensed under
section 5123.19 of the Revised Code. (C) The provisions of this
division
section apply to
hospitals, doctors
of medicine, doctors of osteopathic medicine,
and doctors of
podiatric medicine. (D) This section does not apply to homes or residential
facilities.
Sec. 2711.24.
(A) To the extent it is in ten-point type
and
is executed in the following form, an arbitration agreement
of the
type stated in section 2711.23 of the Revised Code shall
be
presumed valid and enforceable in the absence of proof by a
preponderance of the evidence that the execution of the agreement
was induced by fraud, that the patient executed the agreement as
a
direct result of the willful or negligent disregard by the
physician or hospital of the patient's right not to so execute,
or
that the patient executing the agreement was not able to
communicate effectively in spoken and written English or any
other
language in which the agreement is written: "AGREEMENT TO RESOLVE FUTURE MALPRACTICECLAIM BY BINDING
ARBITRATIONIn the event of any dispute or controversy arising out of
the
diagnosis, treatment, or care of the patient by the provider
of
medical services, the dispute or controversy shall be
submitted to
binding arbitration. Within fifteen days after a party to this agreement has
given
written notice to the other of demand for arbitration of
said
that
dispute or controversy, the parties to the dispute or
controversy
shall each appoint an arbitrator and give notice of
such
the
appointment to the other. Within a reasonable time after
such
notices have been given, the two arbitrators so selected
shall
select a neutral arbitrator and give notice of the
selection
thereof
of a neutral arbitrator to the parties. The arbitrators
shall hold a
hearing
within a reasonable time from the date of
notice of
selection of
the neutral arbitrator. Expenses of the arbitration shall be shared equally by the
parties to this agreement. The patient, by signing this agreement, also acknowledges
that
he
the patient has been informed that: (1) Medical or hospital care, diagnosis, or treatment will
be provided whether or not the patient signs the agreement to
arbitrate;. (2) The agreement may not even be submitted to a patient
for
approval when the patient's condition prevents the patient
from
making a rational decision whether or not to agree;. (3) The decision whether or not to sign the agreement is
solely a matter for the patient's determination without any
influence by the physician or hospital;. (4) The agreement waives the patient's right to a trial in
court for any future malpractice claim
he
the patient may have
against the
physician or hospital;. (5) The patient must be furnished with two copies of this
agreement. PATIENT'S RIGHT TO CANCEL
HIS AGREEMENT
TO ARBITRATEThe patient, or the patient's spouse or the personal
representative of
his
the patient's estate in the event of the
patient's death
or incapacity, has the right to cancel this
agreement to
arbitrate by notifying the physician or hospital in
writing
within sixty days after the patient's discharge from the
hospital
for any claim against a hospital, or within sixty days
after the
termination of the physician-patient relationship for
the
physical condition involved for claims against physicians.
The
patient, or
his
the patient's spouse or representative, as
appropriate, may
cancel this agreement by merely writing
"cancelled" on the face
of one of
his
the patient's copies of the
agreement, signing
his
the patient's name under
such
that word,
and
mailing, by certified mail, return receipt
requested,
such
that copy to
the physician or hospital within
such
the
sixty-day
period. Filing of a medical claim in a court within the sixty days
provided for cancellation of the arbitration agreement by the
patient will cancel the agreement without any further action by
the patient. ................................................................ Signature of Provider of Medical Services................................................................ Signature of Patient"(B) As used in this section
the terms "hospital": (1) "Hospital" and
"physician" have the
same meanings
set
forth
as in division (D) of
section
2305.11 of the Revised Code.
The (2) "Home" has the same meaning as in section 3721.10 of the
Revised Code. (3) "Residential facility" means a facility licensed under
section 5123.19 of the Revised Code. (C) The provisions of this
division
section
apply to
hospitals, doctors of medicine, doctors of
osteopathic
medicine,
and doctors of podiatric medicine.
(D) This section does not apply to homes or residential
facilities.
Sec. 3721.02. (A) The director of health shall license homes
and establish procedures to be followed in inspecting and
licensing homes. The director may inspect a home at any time.
Each home shall be inspected by the director at least once prior
to the issuance of a license and at least once every fifteen
months thereafter. The state fire marshal or a township,
municipal, or other legally constituted fire department approved
by the marshal shall also inspect a home prior to issuance of a
license, at least once every fifteen months thereafter, and at
any
other time requested by the director. A home does not have
to be
inspected prior to issuance of a license by the director,
state
fire marshal, or a fire department if ownership of the home
is
assigned or transferred to a different person and the home was
licensed under this chapter immediately prior to the assignment
or
transfer. The director may enter at any time, for the
purposes of
investigation, any institution, residence, facility,
or other
structure
which
that has been reported to the director or
that the
director has reasonable cause to believe is operating as
a nursing
home, residential care facility, or
home for the aging without a
valid
license required by section 3721.05 of the Revised Code
or,
in the case of a county home or district home, is operating
despite the
revocation of its residential care facility license.
The director may
delegate the director's
authority
and duties
under this chapter to any division, bureau, agency, or official
of
the department of health. (B) A single facility may be licensed both as a nursing home
pursuant to this chapter and as an adult care facility pursuant
to
Chapter 3722. of the Revised Code if the director determines
that
the part or unit to be licensed as a nursing home can be
maintained separate and discrete from the part or unit to be
licensed as an adult care facility. (C) In determining the number of residents in a home for the
purpose of licensing, the director shall consider all the
individuals for whom the home provides accommodations as one
group
unless one of the following is the case: (A)(1) The home is a home for the aging, in which case all
the individuals in the part or unit licensed as a nursing home
shall be considered as one group, and all the individuals in the
part or unit licensed as a rest home shall be considered as
another group;.
(B)(2) The home is both a nursing home and an adult care
facility. In that case, all the individuals in the part or unit
licensed as a nursing home shall be considered as one group, and
all the individuals in the part or unit licensed as an adult care
facility shall be considered as another group.
(C)(3) The home maintains, in addition to a nursing home or
residential care facility, a separate and discrete part
or unit
that provides accommodations to individuals who do not require or
receive skilled nursing care and do not receive personal care
services
from the home, in which case the individuals in the
separate and
discrete part or unit shall not be considered in
determining the
number of residents in the home if the separate
and discrete part
or unit is in compliance with the Ohio basic
building code
established by the board of building standards under
Chapters
3781. and 3791. of the Revised Code and the home permits
the
director, on request, to inspect the separate and discrete
part
or unit and speak with the individuals residing there, if
they
consent, to determine whether the separate and discrete part
or
unit meets the requirements of this division.
(D) The director of health shall charge an application fee
and
an annual renewal licensing and inspection fee of one hundred
dollars for each fifty persons or part thereof of a home's
licensed capacity. All fees collected by the director for the
issuance or renewal of licenses shall be deposited into the state
treasury to the credit of the general operations fund created in
section 3701.83 of the Revised Code for use only in administering
and enforcing this chapter and rules adopted under it.
(E) The results of an inspection or investigation of a home
that is conducted under this section, including any statement of
deficiencies and all findings and deficiencies cited in the
statement on the basis of the inspection or investigation, shall
be used solely to determine the home's compliance with this
chapter or another chapter of the Revised Code in any action or
proceeding other than an action commenced
under division (I) of
section 3721.17 of the Revised Code. Those
results of an
inspection or investigation, that
statement of
deficiencies, and
the findings and deficiencies cited
in that
statement shall not be
used in any court or in any action
or
proceeding that is pending
in any court and are not admissible
in
evidence in any action or
proceeding unless that action or
proceeding is an appeal of an
action by the department of health
under this chapter or is an
action by any department or agency of
the state to enforce this
chapter or another chapter of the Revised Code.
Sec. 3721.17. (A) Any resident who believes that the
resident's
rights under sections 3721.10 to 3721.17 of the Revised
Code have
been violated may file a grievance under procedures
adopted
pursuant to division (A)(2) of section 3721.12 of the
Revised
Code. When the grievance committee determines a violation of
sections 3721.10 to 3721.17 of the Revised Code has occurred, it
shall notify the administrator of the home. If the violation
cannot be corrected within ten days, or if ten days have elapsed
without correction of the violation, the grievance committee
shall
refer the matter to the department of health. (B) Any person who believes that a resident's rights under
sections 3721.10 to 3721.17 of the Revised Code have been
violated
may report or cause reports to be made of the
information directly
to the department of health. No person who
files a report is
liable for civil damages resulting from the
report. (C)(1) Within thirty days of receiving a complaint under
this section, the department of health shall investigate any
complaint referred to it by a home's grievance committee and any
complaint from any source that alleges that the home provided
substantially less than adequate care or treatment, or
substantially unsafe conditions, or, within seven days of
receiving a complaint, refer it to the attorney general, if the
attorney general
agrees to investigate within thirty days. (2) Within thirty days of receiving a complaint under this
section, the department of health may investigate any alleged
violation of sections 3721.10 to 3721.17 of the Revised Code, or
of rules, policies, or procedures adopted pursuant to those
sections, not covered by division (C)(1) of this section, or it
may, within seven days of receiving a complaint, refer the
complaint to the grievance committee at the home where the
alleged
violation occurred, or to the attorney general if the
attorney
general
agrees to investigate within thirty days. (D) If, after an investigation, the department of health
finds probable cause to believe that a violation of sections
3721.10 to 3721.17 of the Revised Code, or of rules, policies, or
procedures adopted pursuant to those sections, has occurred at a
home that is certified under
the medicare or medicaid program,
it
shall cite one or more
findings or deficiencies under sections
5111.35 to 5111.62 of the
Revised Code. If the home is not so
certified, the department
shall hold an adjudicative hearing
within thirty days under
Chapter 119. of the Revised Code. (E) Upon a finding at an adjudicative hearing under
division
(D) of this section that a violation of sections 3721.10
to
3721.17 of the Revised Code, or of rules, policies, or
procedures
adopted pursuant thereto, has occurred, the department
of health
shall make an order for compliance, set a reasonable
time for
compliance, and assess a fine pursuant to division (F)
of this
section. The fine shall be paid to the general revenue
fund only
if compliance with the order is not shown to have been
made within
the reasonable time set in the order. The department
of health
may issue an order prohibiting the continuation of any
violation
of sections 3721.10 to 3721.17 of the Revised Code. Findings at the hearings conducted under this section may
be
appealed pursuant to Chapter 119. of the Revised Code, except
that
an appeal may be made to the court of common pleas of the
county
in which the home is located. The department of health shall initiate proceedings in
court
to collect any fine assessed under this section
which
that is
unpaid
thirty days after the violator's final appeal is
exhausted. (F) Any home found, pursuant to an adjudication hearing
under division (D) of this section, to have violated sections
3721.10 to 3721.17 of the Revised Code, or rules, policies, or
procedures adopted pursuant to those sections may be fined not
less than one hundred nor more than five hundred dollars for a
first offense. For each subsequent offense, the home may be
fined
not less than two hundred nor more than one thousand
dollars. A violation of sections 3721.10 to 3721.17 of the Revised
Code is a separate offense for each day of the violation and for
each resident who claims the violation. (G) No home or employee of a home shall retaliate against
any person who: (1) Exercises any right set forth in sections 3721.10 to
3721.17 of the Revised Code, including, but not limited to,
filing
a complaint with the home's grievance committee or
reporting an
alleged violation to the department of health; (2) Appears as a witness in any hearing conducted under
this
section
or section
3721.162 of the Revised Code; (3) Files a civil action alleging a violation of sections
3721.10 to 3721.17 of the Revised Code, or notifies a county
prosecuting attorney or the attorney general of a possible
violation of sections 3721.10 to 3721.17 of the Revised Code. If, under the procedures outlined in this section, a home
or
its employee is found to have retaliated, the violator may be
fined up to one thousand dollars. (H) When legal action is indicated, any evidence of
criminal
activity found in an investigation under division (C) of
this
section shall be given to the prosecuting attorney in the
county
in which the home is located for investigation. (I)(1) Any resident whose rights under sections 3721.10 to
3721.17 of the Revised Code are violated has a cause of action
against any person or home committing the violation. The action
may be commenced by the resident or by the resident's
sponsor
legal guardian or other legally authorized representative on
behalf of the resident
or the resident's estate.
Further, if the
resident is unable to do so, the resident's spouse, parent, or
adult child also may commence the action on behalf of the resident
or the resident's estate, and the result of that action shall bind
the resident or the resident's estate. (2)(a)
The plaintiff in an action filed under division (I)(1)
of this section may obtain injunctive relief against the violation
of the resident's rights. The plaintiff also may recover
compensatory damages based upon a showing, by a preponderance of
the evidence, that the violation of the resident's rights resulted
from a negligent act or omission of the person or home and that
the violation was the proximate cause of the resident's injury,
death, or loss to person or property. If compensatory damages are
awarded for a violation
of the
resident's rights, section 2315.21
of the Revised Code,
except divisions (E)(1) and
(2) of that
section, shall apply to an
award of punitive or exemplary damages
for the violation. (b) The court, in a case in which only injunctive relief is
granted, may award to the prevailing party
reasonable
attorney's
fees limited to the work reasonably
performed. (3) Division (I)(2)(a) of this section
shall be considered
to be purely remedial in operation and shall be applied in
a
remedial manner in any civil action in which this section is
relevant,
whether the action is pending in court or commenced on
or after
July 9, 1998.
(4) Within thirty days after the filing of a complaint in an
action for damages brought against a home under division (I)(1) of
this section by or on behalf of a resident or former resident of
the home, the plaintiff or plaintiff's counsel shall send written
notice of the filing of the complaint to the department of job and
family services if the department has a right of recovery under
section 5101.58 of the Revised Code against the liability of the
home for the cost of medical services and care arising out of
injury, disease, or disability of the resident or former resident.
Sec. 5111.411. The results of a survey of a nursing facility
that is conducted under section 5111.39 of the Revised Code,
including any statement of deficiencies and all findings and
deficiencies cited in the statement on the basis of the survey,
shall be used solely to determine the nursing facility's
compliance with certification requirements or with this chapter or
another chapter of the Revised Code. Those results of a
survey,
that statement of deficiencies, and the findings and
deficiencies
cited in that statement shall not be used in any
court or in any
action or proceeding that is pending in any court
and are not
admissible in evidence in any action or proceeding
unless that
action or proceeding is an appeal of an administrative
action by
the department of job and family services or contracting
agency
under this chapter or is an action by any department or
agency of
the state to enforce this chapter or another chapter of the
Revised Code.
Section 2. That existing sections 2305.11, 2315.21, 2711.23,
2711.24,
3721.02,
and 3721.17 of the Revised Code are hereby
repealed.
Section 3. Nothing in this act applies to proceedings or
appeals involving workers' compensation claims under Chapter 4121.
or 4123. of the Revised Code.
Section 4. If any provision of section 2305.11, 2315.21,
2711.23, 2711.24, 3721.02, or 3721.17 of the Revised Code, as
amended by this act, any provision of section 5111.411 of the
Revised Code, as enacted by this act, or the application of any
provision of those sections to any person or circumstance is held
invalid, the invalidity does not affect other provisions or
applications of the particular section or related sections that
can be given effect without the invalid provision or application,
and to this end the provisions of the particular section are
severable.
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