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H. B. No. 533As IntroducedAs Introduced
124th General Assembly | Regular Session | 2001-2002 |
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REPRESENTATIVE Buehrer
A BILL
To amend section 2317.02 of the Revised Code to permit
the testimonial privilege between a physician and a
deceased patient to be waived by any party to a
will contest action.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2317.02 of the Revised Code be
amended to read as follows:
Sec. 2317.02. The following persons shall not testify in
certain respects: (A) An attorney, concerning a communication made to the
attorney by a client in that relation or the
attorney's advice to
a client, except
that the attorney may testify by express consent
of the client
or, if the client is deceased, by the express
consent of the
surviving spouse or the executor or administrator
of the estate
of the deceased client and except that, if the
client voluntarily
testifies or is deemed by section 2151.421 of
the Revised Code to
have waived any testimonial privilege under
this division, the
attorney may be compelled to testify on the
same subject; (B)(1) A physician or a dentist concerning a communication
made to the physician or dentist by a patient in that relation or
the
physician's or dentist's advice to a
patient, except as
otherwise provided in this division, division (B)(2), and
division
(B)(3) of this section, and except that, if the patient
is deemed
by section 2151.421 of the Revised Code to have waived
any
testimonial privilege under this division, the physician may
be
compelled to testify on the same subject. The testimonial privilege established under this division
does not
apply, and a physician or dentist may testify or may be
compelled
to testify, in any of the following circumstances: (a) In any civil action, in accordance with the discovery
provisions of the Rules of Civil Procedure in connection with a
civil action, or in connection with a claim under Chapter 4123.
of
the Revised Code, under any of the following circumstances: (i) If the patient or the guardian or other legal
representative of the patient gives express consent; (ii) If the patient is deceased, the spouse of the patient
or the executor or administrator of the patient's estate
gives
express consent; (iii) If a medical claim, dental claim, chiropractic
claim,
or optometric claim, as defined in section 2305.11 of the
Revised
Code, an action for wrongful death, any other type of
civil
action, or a claim under Chapter 4123. of the Revised Code
is
filed by the patient, the personal representative of the
estate of
the patient if deceased, or the patient's guardian
or other legal
representative. (b) In any civil action concerning court-ordered treatment
or services
received by a patient, if the court-ordered treatment
or services were ordered
as part of a case plan journalized under
section 2151.412 of the Revised Code or the
court-ordered
treatment or services are necessary or relevant to dependency,
neglect, or abuse or temporary or permanent custody proceedings
under
Chapter 2151. of the Revised Code. (c) In any criminal action concerning any test or the
results of any test that determines the presence or concentration
of alcohol,
a drug of abuse, or alcohol and a drug of abuse in the
patient's
blood, breath, urine, or other bodily substance at any
time
relevant to the criminal offense in question. (d) In any criminal action against a physician
or dentist.
In such an action, the testimonial privilege
established under
this division does not prohibit the admission
into evidence, in
accordance with the
Rules of
Evidence, of a patient's
medical or
dental records or other communications between a
patient and the
physician or dentist that are related to the
action and obtained
by subpoena, search warrant, or other lawful
means. A court that
permits or compels a physician or dentist
to testify in such an
action or permits the introduction into
evidence of patient
records or other communications in such an
action shall require
that appropriate measures be taken to
ensure that the
confidentiality of any patient named or
otherwise identified in
the records is maintained. Measures to
ensure confidentiality
that may be taken by the court include
sealing its records or
deleting specific information from its
records. (e) In any will contest action under sections 2107.71 to
2107.77 of the Revised Code if all of the following apply: (i) The patient is deceased. (ii) A party to the will contest action gives express
consent. (iii) The party who gives consent pursuant to division
(B)(1)(e)(ii) of this section demonstrates to the court that that
party would be an heir of the patient if the patient died without
a will, is a beneficiary under the will that is the subject of the
will contest action, or is a beneficiary under another
testamentary document allegedly executed by the patient. (2)(a) If any law enforcement officer submits a written
statement to a health
care provider that states that an official
criminal investigation has begun
regarding a specified person or
that a criminal action or proceeding has been
commenced against a
specified person, that requests the provider to supply to
the
officer copies of any records the provider possesses that pertain
to any
test or the results of any test administered to the
specified person to
determine the presence or concentration of
alcohol, a drug of abuse, or alcohol
and a drug of abuse in the
person's blood, breath, or urine at any time
relevant to the
criminal offense in question, and that conforms to section
2317.022 of the Revised Code, the provider, except to the extent
specifically
prohibited by any law of this state or of the United
States, shall supply to
the officer a copy of any of the requested
records the provider possesses. If
the health care provider does
not possess any of the requested records, the
provider shall give
the officer a written statement that indicates that the
provider
does not possess any of the requested records. (b) If a health care provider possesses any records of the
type described in
division (B)(2)(a) of this section regarding the
person in question at any
time relevant to the criminal offense in
question, in lieu of personally
testifying as to the results of
the test in question, the custodian of the
records may submit a
certified copy of the records, and, upon its submission,
the
certified copy is qualified as authentic evidence and may be
admitted as
evidence in accordance with the Rules of Evidence.
Division (A) of section
2317.422 of the Revised Code does not
apply to any certified copy of records
submitted in accordance
with this division. Nothing in this division shall be
construed
to limit the right of any party to call as a witness the person
who
administered the test to which the records pertain, the person
under whose
supervision the test was administered, the custodian
of the records, the
person who made the records, or the person
under whose supervision the records
were made. (3)(a) If the testimonial privilege described in division
(B)(1) of this section does not apply as provided in division
(B)(1)(a)(iii) of this section, a physician or dentist may be
compelled to testify or to submit to discovery under the Rules of
Civil Procedure only as to a communication made to the physician
or dentist by the patient in question in that relation, or the
physician's or
dentist's advice to the
patient in question, that
related causally or historically to
physical or mental injuries
that are relevant to issues in the
medical claim, dental claim,
chiropractic claim, or optometric
claim, action for wrongful
death, other civil action, or claim
under Chapter 4123. of the
Revised Code. (b) If the testimonial privilege described in division
(B)(1) of this section
does not apply to a physician or dentist as
provided in division
(B)(1)(c) of
this section, the physician or
dentist, in lieu of personally testifying as to
the results of the
test in question, may submit a certified copy of those
results,
and, upon its submission, the certified copy is qualified as
authentic
evidence and may be admitted as evidence in accordance
with the Rules of
Evidence. Division (A) of section 2317.422 of
the Revised Code does not apply
to any certified copy of results
submitted in accordance with this division.
Nothing in this
division shall be construed to limit the right of any party to
call as a witness the person who administered the test in
question, the person
under whose supervision the test was
administered, the custodian of the
results
of the test, the person
who compiled the results, or the person under whose
supervision
the results were compiled. (c) If the testimonial privilege described in division (B)(1)
of this section does not apply as provided in division (B)(1)(e)
of this section, a physician or dentist may be compelled to
testify or to submit to discovery in the will contest action under
sections 2107.71 to 2107.77 of the Revised Code only as to the
patient in question on issues relevant to the competency of the
patient at the time of the execution of the will. Testimony or
discovery conducted pursuant to this division shall be conducted
in accordance with the Rules of Civil Procedure. (4) The testimonial privilege
described in division (B)(1)
of this section is not waived when a
communication is made by a
physician to a pharmacist or when there
is communication between a
patient and a pharmacist in furtherance
of the physician-patient
relation. (5)(a) As used in divisions (B)(1) to (4) of this
section,
"communication" means acquiring, recording, or transmitting any
information, in any manner, concerning any facts, opinions, or
statements necessary to enable a physician or dentist to
diagnose,
treat, prescribe, or act for a patient. A
"communication" may
include, but is not limited to, any medical
or dental, office, or
hospital communication such as a record,
chart, letter,
memorandum, laboratory test and results, x-ray,
photograph,
financial statement, diagnosis, or prognosis. (b) As used in division (B)(2) of this section,
"health care
provider"
means a hospital, ambulatory care facility, long-term
care facility, pharmacy, emergency facility, or health care
practitioner. (c) As used in division (B)(5)(b) of this section: (i)
"Ambulatory care facility" means a facility that
provides
medical, diagnostic, or surgical treatment to patients
who do not
require hospitalization, including a dialysis center,
ambulatory
surgical facility, cardiac catheterization facility,
diagnostic
imaging center, extracorporeal shock wave lithotripsy
center, home
health agency, inpatient hospice, birthing center,
radiation
therapy center, emergency facility, and an urgent care
center.
"Ambulatory health care facility" does not include the
private
office of a physician or dentist, whether the office is
for an
individual or group practice. (ii)
"Emergency facility" means a hospital emergency
department or any other facility that provides emergency medical
services.
(iii)
"Health care practitioner" has the same meaning as in
section 4769.01 of the Revised Code. (iv)
"Hospital" has the same meaning as in section 3727.01
of
the Revised Code. (v)
"Long-term care facility" means a nursing home,
residential care facility, or home
for the aging,
as those terms
are defined in section 3721.01 of the Revised Code; an adult care
facility, as defined in section 3722.01
of the Revised Code; a
nursing facility or intermediate care facility for the mentally
retarded, as those terms are defined in section 5111.20 of the
Revised Code; a facility or portion of a facility certified as a
skilled nursing facility under Title XVIII of the
"Social
Security
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended.
(vi)
"Pharmacy" has the same meaning as in section 4729.01
of
the Revised Code. (6) Divisions (B)(1), (2), (3), (4),
and (5) of this section
apply
to doctors of medicine, doctors of osteopathic medicine,
doctors
of podiatry, and dentists. (7) Nothing in divisions (B)(1) to (6)
of this section
affects, or shall be construed as affecting, the immunity from
civil liability conferred by section 307.628 or 2305.33 of the
Revised Code
upon physicians who report an employee's use of a
drug of abuse,
or a condition of an employee other than one
involving the use of
a drug of abuse, to the employer of the
employee in accordance
with division (B) of that section. As used
in division
(B)(7) of this section,
"employee,"
"employer," and
"physician" have the same meanings as
in section 2305.33 of the
Revised Code. (C) A member of the clergy, rabbi, priest, or regularly
ordained,
accredited, or licensed minister of an established and
legally
cognizable church, denomination, or sect, when the member
of
the clergy,
rabbi, priest, or minister remains accountable to
the authority
of that church, denomination, or sect, concerning a
confession
made, or any information confidentially communicated,
to the
member of the clergy, rabbi, priest, or minister for
a
religious counseling purpose in the
member of the clergy's,
rabbi's,
priest's, or minister's professional character;
however,
the member of the clergy, rabbi, priest, or
minister
may testify
by
express consent of the person making the communication, except
when the disclosure of the information is in violation of a sacred
trust; (D) Husband or wife, concerning any communication made by
one to the other, or an act done by either in the presence of the
other, during coverture, unless the communication was made, or
act
done, in the known presence or hearing of a third person
competent
to be a witness; and such rule is the same if the
marital relation
has ceased to exist; (E) A person who assigns a claim or interest, concerning
any
matter in respect to which the person would not, if a
party, be
permitted to testify; (F) A person who, if a party, would be restricted
under
section 2317.03 of the Revised Code, when the
property or thing is
sold or transferred by an executor,
administrator, guardian,
trustee, heir, devisee, or legatee,
shall be restricted in the
same manner in any action or
proceeding concerning the property or
thing. (G)(1) A school guidance counselor who holds a valid
educator license from the state board of education as
provided for
in section 3319.22 of the Revised Code, a person
licensed under
Chapter 4757. of the Revised Code
as a professional clinical
counselor, professional counselor,
social worker, or independent
social worker, or registered under Chapter 4757. of the Revised
Code as a
social work assistant concerning a confidential
communication received from a
client in that relation or
the
person's advice to a client unless any of
the following applies: (a) The communication or advice indicates clear and
present
danger to the client or other persons. For the purposes
of this
division, cases in which there are indications of present
or past
child abuse or neglect of the client constitute a clear
and
present danger. (b) The client gives express consent to the testimony. (c) If the client is deceased, the surviving spouse or the
executor or administrator of the estate of the deceased client
gives express consent. (d) The client voluntarily testifies, in which case the
school guidance counselor or person licensed or registered under
Chapter 4757. of the Revised Code may
be compelled to testify on
the same subject. (e) The court in camera determines that the information
communicated by the client is not germane to the counselor-client
or social worker-client relationship. (f) A court, in an action brought against a school, its
administration, or any of its personnel by the client, rules
after
an in-camera inspection that the testimony of the school
guidance
counselor is relevant to that action. (g) The testimony is sought in a civil action and concerns
court-ordered treatment or services received by a patient as part
of a case
plan journalized under section 2151.412 of the Revised
Code or the court-ordered treatment or
services are necessary or
relevant to dependency, neglect, or abuse or
temporary or
permanent custody proceedings under
Chapter 2151.
of the
Revised
Code. (2) Nothing in division (G)(1) of this section shall
relieve
a
school guidance counselor or a person licensed or registered
under Chapter
4757. of the Revised Code
from the requirement to
report information concerning
child abuse or neglect under section
2151.421 of the Revised Code. (H) A mediator acting under a mediation order issued under
division (A) of section 3109.052 of the Revised Code or otherwise
issued in any proceeding for divorce, dissolution, legal
separation, annulment, or the allocation of parental rights and
responsibilities for the care of children, in any action or
proceeding, other than a criminal, delinquency, child abuse,
child
neglect, or dependent child action or proceeding, that is
brought
by or against either parent who takes part in mediation
in
accordance with the order and that pertains to the mediation
process, to any information discussed or presented in the
mediation process, to the allocation of parental rights and
responsibilities for the care of the parents' children, or to the
awarding of parenting time rights in relation to their children; (I) A communications assistant, acting within the scope of
the communication assistant's authority, when providing
telecommunications relay service
pursuant to section 4931.35 of
the Revised Code or Title II of
the
"Communications Act of 1934,"
104 Stat. 366 (1990), 47 U.S.C.
225, concerning a communication
made through a telecommunications
relay service.
Nothing in this
section shall limit the obligation of a
communications assistant
to divulge information or testify when mandated by
federal law or
regulation or pursuant to subpoena in a criminal proceeding. Nothing in this section shall limit any immunity or
privilege
granted under federal law or regulation.
(J)(1) A chiropractor in a civil proceeding concerning a
communication made to the chiropractor by a patient in that
relation or the
chiropractor's advice to a patient, except as
otherwise provided in this
division. The testimonial privilege
established under this division does not
apply, and a chiropractor
may testify or may be compelled
to testify, in any civil action,
in accordance with the discovery
provisions of the Rules of Civil
Procedure in
connection with a
civil action, or in connection with
a claim under Chapter 4123.
of the Revised Code, under any of the
following
circumstances: (a) If the patient or the guardian or other legal
representative of the patient gives express consent. (b) If the patient is deceased, the spouse of the patient
or
the executor or administrator of the patient's estate
gives
express consent. (c) If a medical claim, dental claim, chiropractic
claim, or
optometric claim, as defined in section 2305.11 of the
Revised
Code, an action for wrongful death, any other type
of
civil
action, or a claim under Chapter 4123. of the Revised
Code
is
filed by the patient, the personal representative of the
estate of
the patient if deceased, or the patient's guardian
or other legal
representative. (2) If the testimonial privilege described in division
(J)(1) of this section does not apply as provided in division
(J)(1)(c) of this section, a chiropractor may be
compelled to
testify or to submit to discovery under the Rules of
Civil
Procedure only as to a communication made to the
chiropractor by
the patient in question in that relation, or the
chiropractor's
advice to the
patient in question, that related causally or
historically to
physical or mental injuries that are relevant to
issues in the
medical claim, dental claim, chiropractic claim, or
optometric
claim, action for wrongful death, other civil action,
or claim
under Chapter 4123. of the Revised Code. (3) The testimonial privilege established under this
division does not
apply, and a chiropractor may testify or be
compelled to testify, in any
criminal action or administrative
proceeding. (4) As used in this division,
"communication" means
acquiring,
recording, or transmitting any information, in any
manner, concerning
any facts, opinions, or statements necessary to
enable a chiropractor to
diagnosis
diagnose, treat, or act for a
patient.
A
communication may
include, but is not limited to, any
chiropractic, office, or
hospital communication such as a record,
chart, letter,
memorandum, laboratory test and results, x-ray,
photograph,
financial statement, diagnosis, or prognosis.
Section 2. That existing section 2317.02 of the Revised Code
is hereby repealed.
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