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(124th General Assembly)
(Amended Substitute Senate Bill Number 281)
AN ACT
To amend sections 1751.67, 2117.06, 2305.11, 2305.15,
2305.234, 2317.02, 2317.54, 2323.56, 2711.21,
2711.22, 2711.23, 2711.24, 2743.02, 2743.43,
2919.16, 3923.63, 3923.64, 3929.71, and
5111.018,
to enact sections 2303.23, 2305.113, 2323.41,
2323.42, 2323.43, 2323.55, 3929.88, and to
repeal
sections
2305.27 and 2323.57 of the Revised
Code
relative to
medical claims, dental claims,
optometric claims,
and chiropractic claims.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 1751.67, 2117.06, 2305.11, 2305.15,
2305.234, 2317.02, 2317.54, 2323.56, 2711.21, 2711.22, 2711.23,
2711.24, 2743.02, 2743.43, 2919.16, 3923.63, 3923.64, 3929.71,
and
5111.018 be amended and sections 2303.23, 2305.113, 2323.41,
2323.42,
2323.43, 2323.55, and 3929.88 of the Revised Code be
enacted to
read as
follows:
Sec. 1751.67. (A) Each individual or group health
insuring
corporation policy, contract, or agreement delivered,
issued for
delivery, or renewed in this state that provides
maternity
benefits shall provide coverage of inpatient care and
follow-up
care for a mother and her newborn as follows: (1) The policy, contract, or agreement shall cover a minimum
of
forty-eight hours of inpatient care following a
normal vaginal
delivery and a minimum of ninety-six hours of inpatient care
following a cesarean delivery. Services covered as inpatient
care
shall include medical, educational, and any other services
that
are consistent with the inpatient care recommended in the
protocols and guidelines developed by national organizations
that
represent pediatric, obstetric, and nursing professionals. (2) The policy, contract, or agreement shall cover a
physician-directed source of follow-up care. Services covered
as
follow-up care shall include physical assessment of the
mother and
newborn, parent education, assistance and training in
breast or
bottle feeding, assessment of the home support system,
performance
of any medically necessary and appropriate clinical
tests, and any
other services that are consistent with the
follow-up care
recommended in the protocols and guidelines
developed by national
organizations that represent pediatric,
obstetric, and nursing
professionals. The coverage shall apply
to services provided in a
medical setting or through home health
care visits. The coverage
shall apply to a home health care
visit only if the provider who
conducts the visit is
knowledgeable and experienced in maternity
and newborn care. When a decision is made in accordance with division (B)
of
this section to discharge a mother or newborn prior to the
expiration of the applicable number of hours of inpatient care
required to be covered, the coverage of follow-up care shall
apply
to all follow-up care that is provided within
seventy-two hours
after discharge. When a mother or newborn receives
at
least the
number of hours of inpatient care required to be
covered, the
coverage of follow-up care shall apply to follow-up
care that is
determined to be medically necessary by the
provider responsible
for discharging the mother or newborn. (B) Any decision to shorten the length of inpatient stay
to
less than that specified under division (A)(1) of this
section
shall be made by the physician attending the mother or
newborn,
except that if a nurse-midwife is attending the mother
in
collaboration with a physician, the decision may be made by
the
nurse-midwife. Decisions regarding early discharge shall be
made
only after conferring with the mother or a person
responsible for
the mother or newborn. For purposes of this
division, a person
responsible for the mother or newborn may
include a parent,
guardian, or any other person with authority
to make medical
decisions for the mother or newborn. (C)(1) No health insuring corporation may do either of the
following: (a) Terminate the participation of a provider or health
care
facility in an individual or group health care plan solely
for
making recommendations for inpatient or follow-up care for a
particular mother or newborn that are consistent with the care
required to be covered by this section; (b) Establish or offer monetary or other financial
incentives for the purpose of encouraging a person to decline
the
inpatient or follow-up care required to be covered by this
section. (2) Whoever violates division (C)(1)(a) or (b) of this
section has engaged in
an unfair and deceptive act or practice in
the business of insurance under
sections 3901.19 to 3901.26 of the
Revised Code.
(D) This section does not do any of the following: (1) Require a policy, contract, or agreement to cover
inpatient
or follow-up care that is not received in accordance
with the
policy's, contract's, or agreement's terms pertaining to
the
providers and facilities from which an individual is
authorized
to receive health care services; (2) Require a mother or newborn to stay in a hospital or
other
inpatient setting for a fixed period of time following
delivery; (3) Require a child to be delivered in a hospital or other
inpatient setting; (4) Authorize a nurse-midwife to practice beyond the
authority
to practice nurse-midwifery in accordance with Chapter
4723. of the Revised
Code; (5) Establish minimum standards of medical diagnosis, care,
or
treatment for inpatient or follow-up care for a mother or
newborn. A
deviation from the care required to be covered under
this section shall not,
solely on the basis of this section, give
rise to a medical claim or to
derivative claims for relief, as
those terms are defined in section
2305.11
2305.113 of
the Revised
Code.
Sec. 2117.06. (A) All creditors having claims against an
estate, including claims arising out of contract, out of tort, on
cognovit notes, or on judgments, whether due or not due, secured
or unsecured, liquidated or unliquidated, shall present their
claims in one of the following manners: (1) To the executor or administrator in a writing; (2) To the executor or administrator in a writing, and to
the probate court by filing a copy of the writing with it; (3) In a writing that is sent by ordinary mail addressed
to
the decedent and that is actually received by the executor or
administrator within the appropriate time specified in division
(B) of this section. For purposes of this division, if an
executor or administrator is not a natural person, the writing
shall be considered as being actually received by the executor or
administrator only if the person charged with the primary
responsibility of administering the estate of the decedent
actually receives the writing within the appropriate time
specified in division (B) of this section. (B) All claims shall be presented within one year after
the
death of the decedent, whether or not the estate is released
from
administration or an executor or administrator is appointed
during
that one-year period. Every claim presented shall set
forth the
claimant's address. (C) A claim that is not presented within one year
after
the
death of the decedent shall be forever barred as to all
parties,
including, but not limited to, devisees, legatees, and
distributees. No payment shall be made on the claim and no
action
shall be maintained on the claim, except as otherwise
provided in
sections 2117.37 to 2117.42 of the Revised Code with
reference to
contingent claims. (D) In the absence of any prior demand for allowance, the
executor or administrator shall allow or reject all claims,
except
tax assessment claims, within thirty days after their
presentation, provided that failure of the executor or
administrator to allow or reject within that time shall not
prevent
the executor or administrator from doing so after
that
time and shall not prejudice
the rights of any claimant. Upon the
allowance of a claim, the
executor or the administrator, on demand
of the creditor, shall
furnish the creditor with a written
statement or memorandum of
the fact and date of the
allowance. (E) If the executor or administrator has actual knowledge
of
a pending action commenced against the decedent prior to
the
decedent's
death in a court of record in this state, the
executor
or
administrator shall file a notice of
his
the
appointment
of the
executor or administrator in the
pending
action within ten days
after acquiring that
knowledge.
If the
administrator or executor
is not a natural person, actual
knowledge of a pending suit
against the decedent shall be limited
to the actual knowledge of
the person charged with the primary
responsibility of
administering the estate of the decedent.
Failure to file the
notice within the ten-day period does not
extend the claim period
established by this section. (F) This section applies to any person who is required to
give written notice to the executor or administrator of a motion
or application to revive an action pending against the decedent
at
the date of the death of the decedent. (G) Nothing in this section or in section 2117.07 of the
Revised Code shall be construed to reduce the time mentioned in
section
2125.02, 2305.09,
2305.10,
2305.11,
2305.113, or
2305.12
of
the
Revised Code, provided that no portion of any recovery on a
claim
brought pursuant to any of those sections shall come from
the
assets of an estate unless the claim has been presented
against
the estate in accordance with Chapter 2117. of the Revised
Code. (H) Any person whose claim has been presented and has not
been rejected after presentment is a
creditor as that
term is used
in
Chapters 2113. to 2125. of the Revised Code.
Claims that are
contingent need not be presented except as
provided in sections
2117.37 to 2117.42 of the Revised Code, but,
whether presented
pursuant to those sections or this section,
contingent claims may
be presented in any of the manners described
in division (A) of
this section. (I) If a creditor presents a claim against an estate in
accordance with division (A)(2) of this section, the probate
court
shall not close the administration of the estate until that
claim
is allowed or rejected. (J) The probate court shall not require an executor or
administrator to make and return into the court a schedule of
claims against the estate. (K) If the executor or administrator makes a distribution
of
the assets of the estate prior to the expiration of the time
for
the filing of claims as set forth in this section,
the executor
or administrator shall
provide notice
on the account delivered to
each distributee
that the distributee may be liable
to the estate
up to the value of the distribution and may be
required to return
all or any part of the value of the
distribution if a valid claim
is subsequently made against the
estate within the time permitted
under this section.
Sec. 2303.23. (A) Before the fifteenth day of January,
April,
July, and October of each year, every clerk of a court of
common
pleas in this state shall send to the department of
insurance a
quarterly report containing all of the following
information
relating to each civil action upon a medical claim,
dental claim,
optometric claim, or chiropractic claim that was
filed or is
pending in that court of common pleas:
(1) The style and number of the case;
(2) The date of the filing of the case;
(3) Whether or not there has been a trial and the dates of
the trial if there was a trial;
(4) The current status of the case;
(5) Whether or not the parties have agreed on a settlement
of the case; (6) Whether or not a judgment has been rendered, the nature
of the judgment, including the amounts of the compensatory damages
that represent economic loss and noneconomic loss, and the date of
entry of the judgment;
(7) If a judgment has been rendered, whether or not a notice
of appeal of the judgment has been filed or whether the time for
filing an appeal has expired.
(B) If a report that relates to a specific civil action as
described in division (A) of this section includes the information
specified in divisions (A)(6) and (7) of this section with respect
to that action or if the parties have agreed on a settlement, the
succeeding quarterly report that the clerk of the court sends to
the department of insurance no longer shall include the
information described in division (A) of this section with respect
to that action.
(C) For the purpose of paying the costs of implementing
division (A) of this section, the court of common pleas shall
collect the sum of five dollars as additional filing fees in each
civil action upon a medical claim, dental claim, optometric claim,
or chiropractic claim that is filed in the court.
(D) As used in this section, "medical claim," "dental claim,"
"optometric claim," and "chiropractic claim" have the same
meanings as in section 2305.113 of the Revised Code. 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)(C) 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
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,
hospital,
home,
or
residential facility,
against
any employee or agent of a
physician, podiatrist,
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
the following:
(a) Derivative claims for
relief
that arise
from the medical
diagnosis, care, or treatment
of a
person;
(b) Claims that arise out of the medical diagnosis, care, or
treatment of any person and to which either of the following
apply:
(i) The claim results from acts or omissions in providing
medical care.
(ii) The claim results from the hiring, training,
supervision, retention,
or termination of caregivers providing
medical diagnosis, care, or treatment.
(c) Claims that arise out of the medical diagnosis, care, or
treatment of any person and that are 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,
"medical claim," "dental
claim," "optometric claim," and
"chiropractic claim" have the same
meanings as in section 2305.113
of the Revised Code.
Sec. 2305.113. (A) Except as otherwise provided in this
section, an action upon a medical, dental, optometric, or
chiropractic claim shall be commenced within one year after the
cause of action accrued.
(B)(1) If prior to the expiration of the one-year period
specified in division (A) of this section, 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) An insurance company shall not consider the existence or
nonexistence of a written notice described in division (B)(1) of
this section in setting the liability insurance premium rates that
the company may charge the company's insured person who is
notified by that written notice.
(C) Except as to persons within the age of minority or of
unsound mind as provided by section 2305.16 of the Revised Code,
and except as provided in division (D) of this section,
both of
the following apply:
(1) No action upon a medical, dental, optometric, or
chiropractic claim shall 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. (2) 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,
any action upon that
claim is barred.
(D)(1)
Subject to division (D)(2)
of this section, if a
person making a medical claim, dental claim,
optometric claim, or
chiropractic claim, in the exercise of
reasonable care and
diligence, could not have discovered the
injury resulting from the
act or omission constituting the alleged
basis of the claim within
the four-year period specified in
division (C)(1) of this section,
the person may commence an action
upon the claim not later than
one year after the person, in the
exercise of reasonable care and
diligence, discovered or should
have discovered the injury
resulting from that act or omission. (2) If a person making a medical claim, dental claim,
optometric claim, or chiropractic claim, in the exercise of
reasonable care and diligence, could not have discovered the
injury resulting from the act or omission constituting the alleged
basis of the claim within three years after the occurrence of the
act or omission, but, in the exercise of reasonable care and
diligence, discovers the injury resulting from that act or
omission before the expiration of the four-year period specified
in division (C)(1) of this section, the person may commence an
action upon the claim not later than one year after the person
discovers the injury resulting from that act or omission. (3) A person who commences an action upon a medical claim,
dental claim, optometric claim, or chiropractic claim under the
circumstances described in division (D)(1) or (2) of this section
has the affirmative burden of proving, by clear and convincing
evidence, that the person, with
reasonable care and diligence,
could not have discovered the
injury resulting from the act or
omission constituting the alleged
basis of the claim within the four-year period described in division (D)(1) of this section or the
three-year period
described in division (D)(2) of this
section, whichever is
applicable.
(E) 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 that are owned or operated by
the state, political subdivisions, any person, any corporation, or
any combination of the state, political subdivisions, persons, and
corporations. "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, hospital, home, or
residential facility, against
any employee or agent of a
physician, podiatrist, hospital, home, or residential facility, or
against a licensed practical nurse, registered nurse, advanced
practice nurse, physical therapist, physician assistant, emergency
medical technician-basic, emergency medical
technician-intermediate, or emergency medical
technician-paramedic, and that arises
out of the medical
diagnosis, care, or treatment of any person.
"Medical claim"
includes the following: (a) Derivative claims for
relief
that arise
from the medical
diagnosis, care, or treatment
of a
person; (b) Claims that arise out of the medical diagnosis, care, or
treatment of any person and to which either of the following
applies: (i) The claim results from acts or omissions in providing
medical care. (ii) The claim results from the hiring, training,
supervision, retention,
or termination of caregivers providing
medical diagnosis, care, or treatment. (c) Claims that arise out of the medical diagnosis, care, or
treatment of any person and that are 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. (16) "Advanced practice nurse" means any certified nurse
practitioner, clinical nurse specialist, or certified registered
nurse anesthetist, or a certified nurse-midwife certified by the
board of nursing under section 4723.41 of the Revised Code. (17) "Licensed practical nurse" means any person who is
licensed to practice nursing as a licensed practical nurse by the
state board of nursing pursuant to Chapter 4723. of the Revised
Code.
(18) "Physician assistant" means any person who holds a
valid certificate of registration or temporary certificate of
registration issued pursuant to Chapter 4730. of the Revised Code.
(19) "Emergency medical technician-basic," "emergency
medical technician-intermediate," and "emergency medical
technician-paramedic" means any person who is certified under
Chapter 4765. of the Revised Code as an emergency medical
technician-basic, emergency medical technician-intermediate, or
emergency medical technician-paramedic, whichever is applicable.
Sec. 2305.15. (A) When a cause of action accrues against
a
person, if
he
the person is out of the state, has absconded,
or
conceals
himself
self, the period of limitation for the
commencement of
the
action as provided in sections 2305.04 to
2305.14, 1302.98, and
1304.35 of the Revised Code does not begin
to run until
he
the
person comes
into the state or while
he
the
person is so absconded or
concealed. After
the cause of action
accrues if
he
the person departs from the
state,
absconds, or
conceals
himself
self, the time of
his
the person's absence or
concealment shall not be computed as any part of a period within
which the action must be brought. (B) When a person is imprisoned for the commission of any
offense, the time of
his
the person's imprisonment shall not be
computed as
any part of any period of limitation, as provided in
section
2305.09, 2305.10, 2305.11,
2305.113, or 2305.14 of the
Revised Code, within
which any person must bring any action
against the imprisoned
person.
Sec. 2305.234. (A) As used in this section: (1)
"Chiropractic claim,"
"medical claim," and
"optometric
claim"
have the same meanings as in section
2305.11
2305.113 of
the Revised
Code. (2)
"Dental claim" has the same meaning as in section
2305.11
2305.113 of the Revised
Code, except that it does not include any
claim arising out of a dental
operation or any derivative claim
for relief that arises out of a dental
operation. (3)
"Governmental health care program" has the same meaning
as in
section
4731.65 of the Revised Code. (4)
"Health care professional" means any of the following
who
provide medical, dental, or other health-related
diagnosis,
care,
or treatment: (a) Physicians authorized under Chapter 4731. of the Revised
Code to practice
medicine and surgery or osteopathic medicine and
surgery; (b) Registered nurses, advanced practice nurses, and
licensed practical nurses licensed
under Chapter
4723. of the
Revised Code; (c) Physician assistants authorized to practice under
Chapter 4730. of the
Revised Code; (d) Dentists and dental hygienists licensed under Chapter
4715. of the
Revised Code; (e) Physical therapists licensed under Chapter 4755. of the
Revised
Code; (f) Chiropractors licensed under Chapter 4734. of the
Revised Code; (g) Optometrists licensed under Chapter 4725. of the Revised
Code; (h) Podiatrists authorized under Chapter 4731. of the
Revised Code to
practice podiatry; (i) Dietitians licensed under Chapter 4759. of the Revised
Code; (j) Pharmacists licensed under Chapter 4729. of the
Revised
Code; (k) Emergency medical technicians-basic, emergency medical
technicians-intermediate, and emergency medical
technicians-paramedic, certified under Chapter 4765. of the
Revised Code. (5)
"Health care worker" means a person other than a health
care
professional who provides medical, dental, or other
health-related care or
treatment under the direction of a health
care professional with the authority
to direct that individual's
activities, including
medical technicians, medical assistants,
dental assistants,
orderlies, aides, and individuals acting in
similar capacities. (6)
"Indigent and uninsured person" means a person who meets
all of the
following requirements: (a) The person's income is not greater than one hundred
fifty per
cent of the current poverty line as defined by the
United States office of
management and budget and revised in
accordance with section 673(2) of the
"Omnibus Budget
Reconciliation Act of 1981," 95 Stat. 511, 42 U.S.C. 9902, as
amended. (b) The person is not eligible to receive medical assistance
under Chapter
5111., disability assistance medical assistance
under Chapter 5115. of the
Revised Code, or assistance under any
other governmental health care
program. (c) Either of the following applies: (i) The person is not a policyholder, certificate
holder,
insured, contract holder, subscriber, enrollee, member,
beneficiary, or other covered individual under a health insurance
or health care policy, contract, or plan. (ii) The person is a policyholder, certificate holder,
insured, contract holder, subscriber, enrollee, member,
beneficiary, or other covered individual under a health insurance
or health care policy, contract, or plan, but the insurer,
policy,
contract, or plan denies coverage or is the subject of
insolvency
or bankruptcy proceedings in any jurisdiction. (7)
"Operation" means any procedure that involves cutting or
otherwise
infiltrating human tissue by mechanical means, including
surgery, laser
surgery, ionizing radiation, therapeutic
ultrasound, or the removal of
intraocular foreign bodies.
"Operation" does not include the administration
of medication by
injection, unless the injection is administered in
conjunction
with a procedure infiltrating human tissue by mechanical means
other than the administration of medicine by injection. (8)
"Nonprofit shelter or health care facility" means
a
charitable nonprofit corporation organized and
operated pursuant
to Chapter 1702. of the Revised
Code, or any charitable
organization not organized and not operated
for profit, that
provides shelter, health care services, or
shelter and health care
services to indigent and uninsured persons,
except that
"shelter
or
health care facility" does not include a hospital as defined in
section
3727.01 of the Revised Code, a facility licensed under
Chapter 3721. of the
Revised Code, or a medical facility that is
operated for profit. (9)
"Tort action" means a civil action for
damages for
injury, death, or loss to person or property other
than a civil
action for damages for a breach of contract or
another agreement
between persons or government entities. (10)
"Volunteer" means an individual who provides any
medical, dental, or
other health-care related diagnosis, care, or
treatment without
the expectation of receiving and without receipt
of any compensation or other
form of remuneration from an indigent
and uninsured person,
another person on behalf of an indigent and
uninsured person, any shelter or
health care facility, or any
other person or government entity. (B)(1) Subject to divisions (E) and (F)(3) of this section,
a health care
professional who is a volunteer and complies with
division (B)(2) of this
section is not liable in damages to any
person or government entity in a tort
or other civil action,
including an action on a medical, dental,
chiropractic,
optometric, or other health-related claim, for injury, death, or
loss to person or property that allegedly arises from an action or
omission of the volunteer in the provision at a nonprofit shelter
or health
care facility to an indigent and uninsured person of
medical, dental, or other
health-related diagnosis, care, or
treatment, including the provision of samples of medicine and
other medical
products, unless the action or omission constitutes
willful or wanton
misconduct. (2) To qualify for the immunity described in division
(B)(1)
of this section, a health care professional shall
do all of the
following prior to providing diagnosis, care, or treatment: (a) Determine, in good faith, that the indigent and
uninsured
person is mentally capable of giving informed consent to
the provision of the diagnosis, care, or treatment and is
not
subject to duress or under undue influence; (b) Inform the person of the provisions of this section; (c) Obtain the informed consent of the person and a written
waiver, signed by the person or by
another individual on behalf of
and in the presence of the person, that states
that the person is
mentally competent to give informed consent and,
without being
subject to duress or under undue influence, gives
informed consent
to the provision of the diagnosis, care, or
treatment subject to
the provisions of this section. (3) A physician or podiatrist who is not covered
by medical
malpractice insurance, but complies with division
(B)(2) of this
section, is not required to comply with division (A) of section
4731.143 of the Revised Code. (C) Subject to divisions (E) and (F)(3) of this section,
health care workers
who are volunteers are not liable in damages
to any person or government
entity in a tort or other civil
action, including an action upon a medical,
dental, chiropractic,
optometric, or other health-related claim, for injury,
death, or
loss to person or property that allegedly arises from
an action or
omission of the health care worker in the
provision at a nonprofit
shelter or health care facility to an indigent and
uninsured
person of medical, dental, or other health-related diagnosis,
care,
or treatment, unless the action or omission constitutes
willful or wanton
misconduct. (D) Subject to divisions (E) and (F)(3) of this section and
section 3701.071
of the Revised Code, a nonprofit shelter or
health care facility associated
with a health care professional
described in division (B)(1) of this section or a health care
worker described in division (C) of this section is
not liable in
damages to any person or government entity in a tort or other
civil action, including an action on a medical, dental,
chiropractic,
optometric, or
other health-related claim, for
injury, death, or loss to person or property
that allegedly arises
from an action or omission of the health care
professional or
worker in providing for the shelter or facility medical,
dental,
or other health-related diagnosis, care, or treatment to an
indigent
and uninsured person, unless the action or omission
constitutes willful or
wanton misconduct. (E)(1) Except as provided in division (E)(2) of this
section, the immunities provided by divisions
(B), (C), and (D) of
this section are not
available to an individual or to a
nonprofit
shelter or health care facility if, at the time of an alleged
injury, death, or loss to person or property, the individuals
involved are
providing one of the following: (a) Any medical, dental, or other health-related diagnosis,
care,
or treatment pursuant
to a community service work order
entered by a court under division
(F) of section 2951.02 of the
Revised
Code as a condition of probation or other suspension of a
term of
imprisonment or imposed by a court as a community control
sanction pursuant
to sections 2929.15 and 2929.17 of the Revised
Code. (b) Performance of an operation. (c) Delivery of a baby. (2) Division (E)(1) of this section does not apply to an
individual who provides, or a nonprofit shelter or health care
facility at
which the individual provides, diagnosis, care, or
treatment that is
necessary to preserve the life of a person in a
medical emergency. (F)(1) This section does not create a new cause
of action or
substantive legal right against a health care professional,
health
care worker, or nonprofit
shelter or health care facility. (2) This section does not affect any immunities from
civil
liability or defenses established by another section of the
Revised Code or available at common law to which
an individual or
a nonprofit shelter or
health care facility may be entitled in
connection with the
provision of emergency or other diagnosis,
care, or
treatment. (3) This section does not grant an immunity from tort
or
other civil liability to an individual or a nonprofit shelter or
health
care facility for actions that are outside the scope of
authority of health
care professionals or health care workers. (4) This section does not affect any legal responsibility of
a
health care professional or health care worker to comply with
any applicable law of this state or rule of an agency of this
state. (5) This section does not affect any legal
responsibility of
a nonprofit shelter or health care facility to comply
with any
applicable law of this state, rule of an agency of this
state, or
local code, ordinance, or regulation that pertains to
or regulates
building, housing, air pollution, water pollution,
sanitation,
health, fire, zoning, or safety. 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
2305.113 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. (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. (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
2305.113 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.
Sec. 2317.54. No hospital, home health agency,
ambulatory
surgical facility, or provider
of a hospice care program shall be
held liable for a physician's
failure to obtain an informed
consent from
the physician's
patient prior to a
surgical or
medical procedure or course of procedures, unless the
physician is
an employee of the hospital, home health agency,
ambulatory
surgical facility or
provider of a hospice care program. Written consent to a surgical or medical procedure or
course
of procedures shall, to the extent that it fulfills all
the
requirements in divisions (A), (B), and (C) of this section,
be
presumed to be valid and effective, in the absence of proof by
a
preponderance of the evidence that the person who sought such
consent was not acting in good faith, or that the execution of
the
consent was induced by fraudulent misrepresentation of
material
facts, or that the person executing the consent was not
able to
communicate effectively in spoken and written English or
any other
language in which the consent is written. Except as
herein
provided, no evidence shall be admissible to impeach,
modify, or
limit the authorization for performance of the
procedure or
procedures set forth in such written consent. (A) The consent sets forth in general terms the nature and
purpose of the procedure or procedures, and what the procedures
are expected to accomplish, together with the reasonably known
risks, and, except in emergency situations, sets forth the names
of the physicians who shall perform the intended surgical
procedures. (B) The person making the consent acknowledges that such
disclosure of information has been made and that all questions
asked about the procedure or procedures have been answered in a
satisfactory manner. (C) The consent is signed by the patient for whom the
procedure is to be performed, or, if the patient for any reason
including, but not limited to, competence, infancy, or the fact
that, at the latest time that the consent is needed, the patient
is under the influence of alcohol, hallucinogens, or drugs, lacks
legal capacity to consent, by a person who has legal authority to
consent on behalf of such patient in such circumstances. Any use of a consent form that fulfills the requirements
stated in divisions (A), (B), and (C) of this section has no
effect on the common law rights and liabilities, including the
right of a physician to obtain the oral or implied consent of a
patient to a medical procedure, that may exist as between
physicians and patients on July 28, 1975. As used in this section the term "hospital" has the
same
meaning
set forth
as in
division (D) of section
2305.11
2305.113
of the Revised Code;
"home health agency" has the
same meaning
set
forth
as in
division (A) of
former
section
3701.88
5101.61 of the
Revised Code;
"ambulatory surgical
facility" has the
same meaning
as in division (A) of section 3702.30 of
the Revised Code; and
"hospice care program"
has the
same meaning
set
forth
as in
division (A) of section 3712.01 of
the Revised Code. The
provisions of this division apply to
hospitals, doctors of
medicine, doctors of osteopathic medicine,
and doctors of
podiatric medicine.
Sec. 2323.41. (A) In any civil action upon a medical,
dental, optometric, or chiropractic claim, the defendant may
introduce evidence of any amount payable as a benefit to the
plaintiff as a result of the damages that result from an injury,
death, or loss to person or property that is the subject of the
claim, except if the source of collateral benefits has a mandatory
self-effectuating federal right of subrogation, a contractual
right of subrogation, or a statutory right of subrogation.
(B) If the defendant elects to introduce evidence
described in division (A) of this section, the plaintiff may
introduce evidence of any amount that the plaintiff has paid or
contributed to secure the plaintiff's right to receive the
benefits of which the defendant has introduced evidence.
(C) A source of collateral benefits of which evidence is
introduced pursuant to division (A) of this section shall not
recover any amount against the plaintiff nor shall it be
subrogated to the
rights of the plaintiff against a defendant.
(D) As used in this section, "medical claim," "dental
claim," "optometric claim," and "chiropractic claim" have the same
meanings as in section 2305.113 of the Revised Code.
Sec. 2323.42. (A) Upon the motion of any defendant in a
civil action based upon a medical claim, dental claim, optometric
claim, or chiropractic claim, the court shall conduct a hearing
regarding the existence or nonexistence of a reasonable good faith
basis upon which the particular claim is asserted against the
moving defendant. The defendant shall file the motion not earlier
than the close of discovery in the action and not later than
thirty days after the court or jury renders any verdict or award
in the action. After the motion is filed, the plaintiff shall
have not less than fourteen days to respond to the motion. Upon
good cause shown by the plaintiff, the court shall grant an
extension of the time for the plaintiff to respond as necessary to
obtain evidence demonstrating the existence of a reasonable good
faith basis for the claim. (B) At the request of any party to the good faith motion
described in division (A) of this section, the court shall order
the motion to be heard at an oral hearing and shall consider all
evidence and arguments submitted by the parties. In determining
whether a plaintiff has a reasonable good faith basis upon which
to assert the claim in question against the moving defendant, the
court shall take into consideration, in addition to the facts of
the underlying claim, whether the plaintiff did any of the
following: (1) Obtained a reasonably timely review of the merits of the
particular claim by a qualified medical, dental, optometric, or
chiropractic expert, as appropriate; (2) Reasonably relied upon the results of that review in
supporting the assertion of the particular claim; (3) Had an opportunity to conduct a pre-suit investigation
or was afforded by the defendant full and timely discovery during
litigation; (4) Reasonably relied upon evidence discovered during the
course of litigation in support of the assertion of the claim in
question; (5) Took appropriate and reasonable steps to timely dismiss
any defendant on behalf of whom it was alleged or determined that
no reasonable good faith basis existed for continued assertion of
the claim in question. (C) If the court determines that there was no reasonable
good faith basis upon which the plaintiff asserted the claim in
question against the moving defendant or that, at some point
during the litigation, the plaintiff lacked a good faith basis for
continuing to assert that claim, the court shall award all of the
following in favor of the moving defendant: (1) All court costs incurred by the moving defendant; (2) Reasonable attorneys’ fees incurred by the moving
defendant in defense of the claim after the time that the court
determines that no reasonable good faith basis existed upon which
to assert or continue to assert the claim; (3) Reasonable attorneys’ fees incurred in support of the
good faith motion. (D) Prior to filing a good faith motion as described in
division (A) of this section, any defendant that intends to file
that type of motion shall serve a "notice of demand for dismissal
and intention to file a good faith motion." If, within fourteen
days of service of that notice, the plaintiff dismisses the
defendant from the action, the defendant after the dismissal shall
be precluded from filing a good faith motion as to any attorneys’
fees and other costs subsequent to the dismissal. (E) As used in this section, "medical claim," "dental
claim," "optometric claim," and "chiropractic claim" have the same
meanings as in section 2305.113 of the Revised Code.
Sec. 2323.43. (A) In a civil action upon a medical, dental,
optometric, or chiropractic claim to recover damages for injury,
death, or loss to person or property, all of the following apply: (1) There shall not be any limitation on compensatory damages
that represent the economic loss of the person who is awarded the
damages in the civil action. (2) Except as otherwise provided in
division (A)(3)
of
this
section, the amount of compensatory
damages that represents
damages for noneconomic loss that is
recoverable by each plaintiff
in a
civil action
upon a medical, dental, optometric,
or
chiropractic claim, which includes related derivative claims, to
recover damages for injury, death, or
loss
to person or property
shall not exceed the greater of two
hundred
fifty thousand dollars
or an amount that is equal to three
times
the plaintiff's economic
loss, as
determined by the trier of
fact,
to a maximum of five
hundred thousand
dollars. (3) The amount recoverable for noneconomic losses by each
plaintiff for each medical claim, dental claim, optometric claim, or chiropractic claim, which includes related derivative claims, may
exceed the amount
described in division (A)(2) of
this section but
shall not exceed
the greater of one million
dollars or fifteen
thousand dollars times the
number of years
remaining in the
injured person's expected life if the noneconomic
losses of the
plaintiff are for either of the following: (a) Permanent and substantial physical deformity, loss of
use of
a
limb, or loss of a bodily organ system; (b) Permanent physical functional injury that permanently
prevents the injured person from being able to independently care
for the injured person's self and perform life sustaining
activities. (B) If a trial is conducted in a civil action
upon a
medical, dental, optometric, or chiropractic claim to recover
damages for injury, death, or loss to person or property and a
plaintiff
prevails with respect to that claim, the court
in a
nonjury trial shall make findings of fact, and the
jury in a
jury
trial shall return a general verdict accompanied
by answers
to
interrogatories, that shall specify all of the
following: (1) The total compensatory damages recoverable by the
plaintiff; (2) The portion of the total compensatory damages that
represents damages for economic loss; (3) The portion of the total compensatory damages that
represents damages for noneconomic loss. (C)(1) After the trier of fact in a civil action
upon a
medical, dental, optometric, or chiropractic claim to recover
damages for injury, death, or loss to person or property complies
with
division (B) of this section, the court
shall enter a
judgment in
favor of the plaintiff for compensatory
damages for
economic loss
in the amount determined pursuant to
division (B)(2)
of this
section, and, subject to division (D)(1) of this section,
the court shall enter a judgment in favor
of the plaintiff for
compensatory
damages for noneconomic loss. In no event shall a
judgment for compensatory damages for noneconomic loss exceed the
maximum recoverable amount that represents damages for noneconomic
loss as provided in divisions (A)(2) and (3) of this section.
Division (A) of this section shall be applied in a jury trial only
after the jury has made its factual findings and determination as
to the damages. (2) Prior to the trial in the civil action, any party may
seek summary judgment with respect to the nature of the alleged
injury or loss to person or property, seeking a determination of
the damages as described in division (A)(2) or (3) of this
section.
(D)(1) A
court of
common
pleas has no
jurisdiction to enter
judgment on an award
of compensatory
damages for
noneconomic loss
in
excess of the limits
set forth in
this
section. (2) If the trier of fact is a jury, the court shall not
instruct
the jury with respect to the limit on compensatory
damages for noneconomic
loss described in divisions (A)(2) and (3)
of
this section, and
neither counsel
for any party nor a witness
shall inform the jury or potential jurors of that
limit. (E) Any excess amount of compensatory damages for
noneconomic loss that is greater than the applicable amount
specified in division (A)(2) or (3) of this section shall not be
reallocated to any other tortfeasor beyond the amount of
compensatory damages that that tortfeasor would otherwise be
responsible for under the laws of this state. (F) This section does not apply to any of the following:
(1) Civil actions upon a medical, dental, optometric, or
chiropractic claim that are brought against the state in the court
of claims, including, but not limited to, those actions in which a
state university or college is a defendant and to which division
(B)(3) of section 3345.40 of the Revised Code applies;
(2) Civil actions upon a medical, dental, optometric, or
chiropractic claim that are brought against political subdivisions
of this state and that are commenced under or are subject to
Chapter 2744. of the Revised Code. Division (C) of section
2744.05 of the Revised Code applies to recoverable damages in
those actions; (3) Wrongful death actions brought pursuant to Chapter 2125.
of the Revised Code.
(G) As used in this section:
(1) "Economic loss" means any of the following types of
pecuniary harm:
(a) All wages, salaries, or other compensation lost as a
result of an injury, death, or loss to person or property that is
a subject of a civil action upon a medical, dental, optometric, or
chiropractic claim;
(b) All expenditures for medical care or treatment,
rehabilitation services, or other care, treatment, services,
products, or accommodations as a result of an injury, death, or
loss to person or property that is a subject of a civil action
upon a medical, dental, optometric, or chiropractic claim;
(c) Any other expenditures incurred as a result of an
injury, death, or loss to person or property that is a subject of
a civil action upon a medical, dental, optometric, or chiropractic
claim, other than attorney's fees incurred in connection with that
action.
(2) "Medical claim," "dental claim," "optometric claim,"
and "chiropractic claim" have the same meanings as in section
2305.113 of the Revised Code.
(3) "Noneconomic loss" means nonpecuniary harm that results
from an injury, death, or loss to person or property that is a
subject of a civil action upon a medical, dental, optometric, or
chiropractic claim, including, but not limited to, pain and
suffering, loss of society, consortium, companionship, care,
assistance, attention, protection, advice, guidance, counsel,
instruction, training, or education, disfigurement, mental
anguish, and any other intangible loss. (4) "Trier of fact" means the jury, or in a nonjury action,
the court.
Sec. 2323.55. (A) As used in this section:
(1) "Economic loss" means any of the following types of
pecuniary harm:
(a) All wages, salaries, or other compensation lost as a
result of an injury, death, or loss to person or property that is
a subject of a civil action upon a medical, dental, optometric, or
chiropractic claim;
(b) All expenditures for medical care or treatment,
rehabilitation services, or other care, treatment, services,
products, or accommodations as a result of an injury, death, or
loss to person or property that is a subject of a civil action
upon a medical, dental, optometric, or chiropractic claim;
(c) Any other expenditures incurred as a result of an
injury, death, or loss to person or property that is a subject of
a civil action upon a medical, dental, optometric, or chiropractic
claim, other than attorney's fees incurred in connection with that
action.
(2) "Future damages" means any damages that result from an
injury, death, or loss to person or property that is a subject of
a civil action upon a medical, dental, optometric, or chiropractic
claim and that will accrue after the verdict or determination of
liability is rendered in that action by the trier of fact.
"Future
damages" includes both economic and noneconomic loss.
(3) "Medical claim," "dental claim," "optometric claim," and
"chiropractic claim" have the same meanings as in section 2305.113
of the Revised Code.
(4) "Noneconomic loss" means nonpecuniary harm that results
from an injury, death, or loss to person or property that is a
subject of a civil action upon a medical, dental, optometric, or
chiropractic claim, including, but not limited to, pain and
suffering, loss of society, consortium, companionship, care,
assistance, attention, protection, advice, guidance, counsel,
instruction, training, or education, disfigurement, mental
anguish, and any other intangible loss.
(5) "Past damages" means any damages that result from an
injury, death, or loss to person or property that is a subject of
a civil action upon a medical, dental, optometric, or chiropractic
claim and that have accrued by the time that the verdict or
determination of liability is rendered in that action by the trier
of fact. "Past damages" include both economic loss and
noneconomic
loss.
(6) "Trier of fact" means the jury or, in a nonjury action,
the court.
(B) In any civil action upon a medical, dental, optometric,
or chiropractic claim in which a plaintiff makes a good faith
claim against the defendant for future damages that exceed fifty
thousand dollars, upon motion of that plaintiff or the defendant,
the trier of fact shall return a general verdict and, if that
verdict is in favor of that plaintiff, answers to interrogatories
or findings of fact that specify both of the following:
(1) The past damages recoverable by that plaintiff;
(2) The future damages recoverable by that plaintiff.
(C) If answers to interrogatories are returned or findings
of fact are made pursuant to division (B) of this section and if
the future damages recoverable by that plaintiff exceeds fifty
thousand dollars, the plaintiff or defendant may file a motion
with the court that seeks a determination under division (D) of
this section. The plaintiff or defendant shall file the motion at
any time after the verdict or determination in favor of the
plaintiff is rendered by the trier of fact but prior to the entry
of judgment in accordance with Civil Rule 58.
(D)(1) Upon the filing of a motion pursuant to division (C)
of this section and prior to the entry of judgment in accordance
with Civil Rule 58, the court shall do all of the following:
(a) Set a date for a hearing to address whether all or any
part of the future damages recoverable by the plaintiff shall be
received by the plaintiff in a series of periodic payments rather
than in a lump sum;
(b) Give notice of the date of the hearing described in
division (D)(1)(a) of this section to the parties involved and
their counsel of record;
(c) Conduct the hearing described in division (D)(1)(a) of
this section, allow the parties involved to present any relevant
evidence at the hearing, consider the factors described in
division (D)(2) of this section in making its determination, and
make its determination in accordance with division (D)(3) of this
section.
(2) In determining whether all or any part of the future
damages recoverable by the plaintiff shall be received by the
plaintiff in a series of periodic payments rather than in a lump
sum, the court shall consider all of the following factors:
(a) The purposes for which those portions of the future
damages were awarded to that plaintiff;
(b) The business or occupational experience of that
plaintiff;
(c) The age of that plaintiff;
(d) The physical and mental condition of that plaintiff;
(e) Whether that plaintiff or the parent, guardian, or
custodian of that plaintiff is able to competently manage the
future damages;
(f) Any other circumstance that relates to whether the
injury sustained by that plaintiff would be better compensated by
the payment of the future damages in a lump sum or by their
receipt in a series of periodic payments.
(3) After the hearing described in division (D)(1) of this
section and prior to the entry of judgment in accordance with
Civil Rule 58, the court shall determine, in its discretion,
whether all or any part of the future damages recoverable by the
plaintiff shall be received by the plaintiff in a series of
periodic payments rather than in a lump sum. If the court
determines that a plaintiff shall receive the future damages
recoverable by the plaintiff in a series of periodic payments, it
may order the payments only as to the amount of the future damages
recoverable by the plaintiff that exceeds fifty thousand dollars.
If the court determines that the plaintiff shall receive the
future damages recoverable by the plaintiff in a lump sum, the
future damages shall be paid in a lump sum.
(E) If the court determines pursuant to division (D) of
this section that a plaintiff shall receive the future damages
recoverable by the plaintiff in a series of periodic payments,
both of the following apply:
(1) Within twenty days after the court makes that
determination, the plaintiff shall submit a periodic payments plan
to the court. The plan may include, but is not limited to, a
provision for a trust or an annuity and may be submitted by that
plaintiff alone or by that plaintiff and the defendant.
(2) Within twenty days after the court makes that
determination, the defendant may submit to the court, alone or
jointly with the plaintiff, a periodic payments plan. If the
defendant submits a periodic payments plan, the plan may include,
but is not limited to, a provision for a trust or an annuity.
(F)(1) If the defendant and plaintiff do not jointly submit
a periodic payments plan and if the defendant does not separately
submit a periodic payments plan, then, within ten days after that
plaintiff submits a plan, the defendant may submit to the court
written comments relative to the periodic payments plan of the
plaintiff.
(2) If the defendant and plaintiff do not jointly submit
a periodic payments plan and if the defendant separately submits a
periodic payments plan, then, within ten days after the defendant
submits the plan, the plaintiff may submit to the court written
comments relative to the periodic payments plan of the defendant.
(G)(1) The court, in its discretion, may modify, approve,
or reject any submitted periodic payments plan. In approving any
periodic payments plan, the court shall require
interest on the
judgment in question in accordance with section
1343.03 of the
Revised Code. Additionally, in approving any
periodic payments
plan, the court is not required to ensure that
payments under the
periodic payments plan are equal in amount or
that the total
amount paid each year under the periodic payments
plan is equal in
amount to the total amount paid in other years
under the plan;
rather, a periodic payments plan may provide for
payments to be
made in irregular or varied amounts, or to be
graduated upward or
downward in amount over the duration of the
periodic payments
plan.
(2) The court shall include in any approved periodic
payments plan adequate security to insure that the plaintiff will
receive all of the periodic payments under that plan. If the
approved periodic payments plan includes a provision for an
annuity as the adequate security or otherwise, the defendant shall
purchase the annuity from either of the following types of
insurance companies:
(a) An insurance company that the A.M. Best Company, in its
most recently published rating guide of life insurance companies,
has rated A or better and has rated XII or higher as to financial
size or strength;
(b) An insurance company that the superintendent of
insurance, under rules adopted pursuant to Chapter 119. of the
Revised Code for purposes of implementing this division,
determines is licensed to do business in this state and,
considering the factors described in this division, is a stable
insurance company that issues annuities that are safe and
desirable. In making determinations as described in this
division, the superintendent shall be guided by the principle that
annuities should be safe and desirable for plaintiffs who are
awarded damages. In making those determinations, the
superintendent shall consider the financial condition, general
standing, operating results, profitability, leverage, liquidity,
amount and soundness of reinsurance, adequacy of reserves, and the
management of any insurance company in question and also may
consider ratings, grades, and classifications of any nationally
recognized rating services of insurance companies and any other
factors relevant to the making of such determinations.
(3) If a periodic payments plan provides for periodic
payments over a period of five years or more to the plaintiff, the
court, in its discretion, may include in the approved periodic
payments plan a provision in which it reserves to itself
continuing jurisdiction over that plan, including jurisdiction to
review and modify that plan.
(4) The court shall specify in the entry of judgment in the
tort action the determination made pursuant to division (D) of
this section and, if applicable, the terms of any approved
periodic payments plan.
(H) After a periodic payments plan is approved, the future
damages that are to be received in periodic payments shall be paid
in accordance with the plan, including, if applicable, payment
over to a trust or annuity provided for in the plan.
(I) If a court orders a series of periodic payments of
future damages in accordance with this section and the plaintiff
dies prior to the receipt of all of the future damages, the
liability for the unpaid portion of those damages that is not yet
due at the time of the death of that plaintiff shall continue, but
the payments shall be paid to the heirs of that plaintiff as
scheduled in and otherwise in accordance with the approved
periodic payments plan or, if the plan does not contain a relevant
provision, as the court shall order.
(J)(1) Nothing in this section precludes a plaintiff and a
defendant from mutually agreeing to a settlement of the action.
(2) Except as otherwise provided in this section, nothing in
this section increases the time for filing any motion or notice of
appeal or taking any other action relative to a civil action upon
a medical, dental, optometric, or chiropractic claim, alters the
amount of any verdict or determination of damages by the trier of
fact in a civil action upon a medical, dental, optometric, or
chiropractic claim, or alters the liability of any party to pay or
satisfy the verdict or determination.
(K) This section does not apply to tort actions that are
brought against political subdivisions of this state and that are
commenced under or are subject to Chapter 2744. of the Revised
Code or to tort actions brought against the state in the court of
claims.
Sec. 2323.56. (A) As used in this section: (1) "Economic loss" means any of the following types of
pecuniary harm: (a) All wages, salaries, or other compensation lost as a
result of an injury to person that is a subject of a tort action; (b) All expenditures for medical care or treatment,
rehabilitation services, or other care, treatment, services,
products, or accommodations as a result of an injury to person
that is a subject of a tort action; (c) Any other expenditures incurred as a result of an
injury
to person that is a subject of a tort action. (2) "Future damages" means any damages that result from an
injury to person that is a subject of a tort action and that will
accrue after the verdict or determination of liability by the
trier of fact is rendered in that tort action. (3) "Medical claim," "dental claim," "optometric claim,"
and
"chiropractic claim" have the same meanings as in section
2305.11
2305.113 of the Revised Code. (4) "Noneconomic loss" means nonpecuniary harm that
results
from an injury to person that is a subject of a tort
action,
including, but not limited to, pain and suffering, loss
of
society, consortium, companionship, care, assistance,
attention,
protection, advice, guidance, counsel, instruction,
training, or
education, mental anguish, and any other intangible
loss. (5) "Past damages" means any damages that result from an
injury to person that is a subject of a tort action and that have
accrued by the time that the verdict or determination of
liability
by the trier of fact is rendered in that tort action,
and any
punitive or exemplary damages awarded. (6) "Tort action" means a civil action for damages for
injury to person. "Tort action" includes a product liability
claim for damages for injury to person 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. (7) "Trier of fact" means the jury or, in a nonjury
action,
the court. (B)(1) In any tort action that is tried to a jury and in
which a plaintiff makes a good faith claim against the defendant
in question for future damages that exceed two hundred thousand
dollars, upon motion of that plaintiff or the defendant in
question, the court shall instruct the jury to return, and the
jury shall return, a general verdict and, if that verdict is in
favor of that plaintiff, answers to interrogatories that shall
specify all of the following: (a) The past damages recoverable by that plaintiff; (b) The future damages recoverable by that plaintiff, and
the portions of those future damages that represent each of the
following: (i) Noneconomic loss; (ii) Economic loss; (iii) Economic loss as described in division (A)(1)(a) of
this section; (iv) Economic loss as described in division (A)(1)(b) of
this section; (v) Economic loss as described in division (A)(1)(c) of
this
section. (2) In any tort action that is tried to a court and in
which
a plaintiff makes a good faith claim against the defendant
in
question for future damages that exceed two hundred thousand
dollars, upon motion of that plaintiff or the defendant in
question, the court shall make its determination in the action
and, if that determination is in favor of that plaintiff, make
findings of fact that shall specify damages as provided in
division (B)(1) of this section. (C) If answers to interrogatories are returned or findings
of fact are made pursuant to division (B) of this section and if
the total of the portions of the future damages described in
divisions (B)(1)(b)(i), (iv), and (v) of this section exceeds
both
two hundred thousand dollars and twenty-five per cent of the
total
of the damages described in divisions (B)(1)(a) and (b) of
this
section, the plaintiff or defendant in question may file a
motion
with the court that seeks a determination under division
(D) of
this section. Such a motion shall be filed at any time
after the
verdict or determination in favor of the plaintiff in
question is
rendered by the trier of fact but prior to the entry
of judgment
in accordance with Civil Rule 58. (D)(1) Upon the filing of a motion pursuant to division
(C)
of this section and prior to the entry of judgment in
accordance
with Civil Rule 58, the court shall do all of the
following: (a) Set a date for a hearing to address whether all or any
part of the total of the portions of the future damages described
in divisions (B)(1)(b)(i), (iv), and (v) of this section shall be
received by the plaintiff in question in a series of periodic
payments rather than in a lump sum; (b) Give notice of the date of the hearing described in
division (D)(1)(a) of this section to the parties involved and
their counsel of record; (c) Conduct the hearing described in division (D)(1)(a) of
this section, allow the parties involved to present any relevant
evidence at the hearing, consider the factors described in
division (D)(2) of this section in making its determination, and
make its determination in accordance with division (D)(3) of this
section. (2) In determining whether all or any part of the total of
the portions of the future damages described in divisions
(B)(1)(b)(i), (iv), and (v) of this section shall be received by
the plaintiff in question in a series of periodic payments rather
than in a lump sum, the court shall consider all of the following
factors: (a) The purposes for which those portions of the future
damages were awarded to that plaintiff; (b) The business or occupational experience of that
plaintiff; (c) The age of that plaintiff; (d) The physical and mental condition of that plaintiff; (e) Whether that plaintiff or the parent, guardian, or
custodian of that plaintiff is able to competently manage those
portions of the future damages; (f) Any other circumstance that relates to whether the
injury sustained by that plaintiff would be better compensated by
the payment of those portions of the future damages in a lump sum
or by their receipt in a series of periodic payments. (3) After the hearing described in division (D)(1) of this
section and prior to the entry of judgment in accordance with
Civil Rule 58, the court shall determine, in its discretion,
whether all or any part of the total of the portions of the
future
damages described in divisions (B)(1)(b)(i), (iv), and (v)
of this
section shall be received by the plaintiff in question in
a series
of periodic payments rather than in a lump sum. If the
court
determines that a series of periodic payments shall be
received by
that plaintiff, it may order such payments only as to
the amount
of that total that exceeds both two hundred thousand
dollars and
twenty-five per cent of the total of the damages
described in
divisions (B)(1)(a) and (b) of this section. (E)(1)(a) If the court determines pursuant to division (D)
of this section that a series of periodic payments shall be
received by the plaintiff in question, then, within twenty days
after the court so determines, that plaintiff shall submit a
periodic payments plan to the court. Such a plan may include,
but
is not limited to, a provision for a trust or an annuity, and
may
be submitted by that plaintiff alone or by that plaintiff and
the
defendant in question. (b) If that defendant and that plaintiff do not jointly
submit a periodic payments plan, then, within twenty days after
the court makes its determination pursuant to division (D) of
this
section that a series of periodic payments shall be received
by
that plaintiff, that defendant may submit to the court a
periodic
payments plan. If
he
that defendant does so, it may
include, but
is
not limited to, a provision for a trust or an annuity. (c) If that defendant and that plaintiff do not jointly
submit a periodic payments plan and if that defendant does not
separately submit such a plan pursuant to division (E)(1)(b) of
this section, then, within ten days after that plaintiff submits
such a plan, that defendant may submit to the court written
comments relative to the periodic payments plan of that
plaintiff.
If that defendant and that plaintiff do not jointly
submit a
periodic payments plan and if that defendant separately
submits
such a plan pursuant to division (E)(1)(b) of this
section, then,
within ten days after that defendant submits such
a plan, that
plaintiff may submit to the court written comments
relative to the
periodic payments plan of that defendant. (d) The court, in its discretion, may modify, approve, or
reject any submitted periodic payments plan. In approving any
periodic payments plan, the court shall take into consideration
interest on the judgment in question, in accordance with section
1343.03 of the Revised Code. Additionally, in approving any
periodic payments plan, the court is not required to ensure that
payments under the periodic payments plan are equal in amount or
that the total amount paid each year under the periodic payments
plan is equal in amount to the total amount paid in other years
under the plan; rather, a periodic payments plan may provide for
payments to be made in irregular or varied amounts, or to be
graduated upward or downward in amount over the duration of the
periodic payments plan. (e) The court shall include in any approved periodic
payments plan adequate security to insure that the plaintiff in
question will receive all of the periodic payments under that
plan. If the approved periodic payments plan includes a
provision
for an annuity as the adequate security or otherwise,
the
defendant in question shall purchase the annuity from either
of
the following types of insurance companies: (i) An insurance company that the A.M. Best Company, in
its
most recently published rating guide of life insurance
companies,
has rated A or better and has rated XII or higher as
to financial
size or strength; (ii) An insurance company that the superintendent of
insurance, under rules adopted pursuant to Chapter 119. of the
Revised Code for purposes of implementing this division,
determines is licensed to do business in this state and,
considering the factors described in this division, is a stable
insurance company that issues annuities that are safe and
desirable. In making determinations as described in this division, the
superintendent shall be guided by the principle that annuities
should be safe and desirable for plaintiffs who are awarded
damages. In making such determinations, the superintendent shall
consider the financial condition, general standing, operating
results, profitability, leverage, liquidity, amount and soundness
of reinsurance, adequacy of reserves, and the management of any
insurance company in question and also may consider ratings,
grades, and classifications of any nationally recognized rating
services of insurance companies and any other factors relevant to
the making of such determinations. (f) If a periodic payments plan provides for periodic
payments over a period of five years or more to the plaintiff in
question, the court, in its discretion, may include in the
approved periodic payments plan a provision in which it reserves
to itself continuing jurisdiction over that plan, including
jurisdiction to review and modify that plan. (g) After a periodic payments plan is approved, the future
damages that are to be received in periodic payments shall be
paid
in accordance with the plan, including, if applicable,
payment
over to a trust or annuity provided for in the plan. (2) If the court determines pursuant to division (D) of
this
section that a series of periodic payments shall not be
received
by the plaintiff in question, the future damages
described in
divisions (B)(1)(b)(i), (iv), and (v) of this
section shall be
paid in a lump sum. (3) The court shall specify in the entry of judgment in
the
tort action the determination made pursuant to division (D)
of
this section and, if applicable, the terms of any approved
periodic payments plan. (F) If a court orders a series of periodic payments of
future damages in accordance with this section, the following
rules shall govern those payments if the plaintiff in question
dies prior to the receipt of all of them: (1) The liability for the portion of those payments that
represents future economic loss as described in division
(B)(1)(b)(iv) of this section and that is not due at the time of
the death of that plaintiff shall cease at that time; (2) The liability for the portion of those payments that
represents future noneconomic loss of that plaintiff as described
in division (B)(1)(b)(i) of this section and that is not due at
the time of the death of that plaintiff shall continue, but the
payments shall be paid to the heirs of that plaintiff as
scheduled
in and otherwise in accordance with the approved
periodic payments
plan or, if the plan does not contain a
relevant provision, as the
court shall order; (3) The liability for the portion of those payments not
described in division (F)(1) or (2) of this section shall
continue, but the payments shall be paid as described in division
(F)(2) of this section. (G)(1) Nothing in this section precludes a plaintiff in
question and a defendant in question from mutually agreeing to a
settlement of the action. (2) Except to the extent provided in divisions (A) to (F)
of
this section, nothing in those divisions increases the time
for
filing any motion or notice of appeal or taking any other
action
relative to a tort action, alters the amount of any
verdict or
determination of damages by the trier of fact in a
tort action, or
alters the liability of any party to pay or
satisfy any such
verdict or determination. (H) This section does not apply to tort actions against
political subdivisions of this state that are commenced under or
are subject to Chapter 2744. of the Revised Code or to tort
actions against the state in the court of claims. This section
also does not apply to a tort or other civil action upon a
medical
claim, dental claim, optometric claim, or chiropractic
claim, and
instead such an action shall be subject to section
2323.57
2323.55
of the Revised Code.
Sec. 2711.21. (A) Upon the filing of any medical, dental,
optometric, or chiropractic claim as defined in
division (D) of
section
2305.11
2305.113 of the Revised Code, if all of the
parties to the
medical, dental, optometric, or chiropractic claim
agree to
submit it to nonbinding arbitration, the controversy
shall be
submitted to an arbitration board consisting of three
arbitrators
to be named by the court. The arbitration board shall
consist of
one person designated by the plaintiff or plaintiffs,
one person
designated by the defendant or defendants, and a person
designated by the court. The person designated by the court
shall
serve as the
chairman
chairperson of the board. Each
member of
the
board shall receive a reasonable compensation based on the
extent
and duration of actual service rendered, and shall be paid
in
equal proportions by the parties in interest. In a claim
accompanied by a poverty affidavit, the cost of the arbitration
shall be borne by the court. (B) The arbitration proceedings shall be conducted in
accordance with sections 2711.06 to 2711.16 of the Revised Code
insofar as they are applicable. Such proceedings shall be
conducted in the county in which the trial is to be held. (C) If the decision of the arbitration board is not
accepted
by all parties to the medical, dental, optometric, or
chiropractic
claim, the claim shall proceed as if it had not been
submitted to
nonbinding arbitration pursuant to this section.
The decision of
the arbitration board and any dissenting opinion
written by any
board member are not admissible into evidence at
the trial. (D) Nothing in this section shall be construed to limit
the
right of any person to enter into an agreement to submit a
controversy underlying a medical, dental, optometric, or
chiropractic claim to binding arbitration.
Sec. 2711.22.
A
(A) Except as otherwise provided in this
section, a written contract between a patient and a hospital or
physician
healthcare provider to settle by binding arbitration
any
dispute or controversy arising
out of the diagnosis,
treatment, or
care
of the patient rendered by a
physician or
hospital,
or
healthcare provider
that is
entered into prior to
or
subsequent
to
the
rendering of such diagnosis,
treatment, or care
of the
patient
is valid, irrevocable, and enforceable, save upon
such
grounds as
exist at law or in equity for the revocation of
any
contract
once
the contract is signed by all parties. The
contract
remains valid,
irrevocable, and enforceable until or
unless the
patient or the
patient's legal representative rescinds
the
contract by written
notice within thirty days of the signing
of
the contract. A
guardian or other legal representative of the
patient may give
written notice of the rescission of the contract
if the patient is
incapacitated or a minor. (B) As used in this section
the terms "hospital" and
"physician" shall have the
meaning set forth in division (D) of
section 2305.11 of the Revised Code. The
provisions of this
division apply
to hospitals, doctors of medicine, doctors of
osteopathic medicine, and
doctors
of podiatric medicine.
and in
sections 2711.23 and 2711.24 of the Revised Code: (1) "Healthcare provider" means a physician,
podiatrist,
dentist, licensed practical nurse, registered nurse, advanced
practice nurse, chiropractor, optometrist, physician assistant,
emergency medical technician-basic, emergency medical
technician-intermediate, emergency medical technician-paramedic,
or physical therapist. (2) "Hospital," "physician," "podiatrist," "dentist,"
"licensed practical nurse,"
"registered nurse," "advanced practice
nurse," "chiropractor,"
"optometrist," "physician assistant,"
"emergency medical technician-basic," "emergency medical
technician-intermediate," "emergency medical
technician-paramedic," "physical
therapist," "medical claim,"
"dental
claim," "optometric claim,"
and "chiropractic claim" have
the same
meanings as in section
2305.113 of the Revised Code.
Sec. 2711.23. 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
a medical
care,
diagnosis, or treatment which are, dental, chiropractic, or
optometric claim that is entered into prior to
rendering such
a
patient receiving any care, diagnosis, or treatment shall include
or be
subject to the following conditions: (A) The agreement shall provide that
medical or hospital
the
care, diagnosis, or treatment will be provided whether or not the
patient signs the agreement to arbitrate; (B) 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
healthcare provider or hospital in writing within
sixty
thirty
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
signing of
the agreement.
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) 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) The agreement shall, if appropriate, provide 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) The agreement shall provide that the arbitration
expenses shall be divided equally between the parties to the
agreement; (F) Any arbitration panel shall consist of three persons,
no
more than one of whom shall be a
physician
health care provider or
the
representative
of a hospital; (G) The arbitration agreement shall be separate from any
other agreement, consent, or document; (H) 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) Filing of a medical, dental, chiropractic, or optometric
claim, as defined in division (D)
of section 2305.11 of the
Revised Code, within the
sixty
thirty days
provided for withdrawal
of a patient from the arbitration
agreement shall be deemed a
withdrawal from
such
the agreement; (J) The agreement shall contain a separately stated notice
that clearly informs the patient of
his
the patient's rights
under
division (B)
of this section. As used in this section, the terms "hospital" and
"physician"
shall have the meanings set forth in division (D) of
section
2305.11 of the Revised Code.
The provisions of this division apply to hospitals, doctors
of medicine, doctors of osteopathic medicine, and doctors of
podiatric medicine.
Sec. 2711.24. 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
healthcare provider 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
healthcare
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
dispute or controversy, the parties to the dispute or
controversy
shall each appoint an arbitrator and give notice of
such
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 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
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
healthcare provider; (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
healthcare provider in
writing
within
sixty
thirty 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
signing of the agreement.
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 word, and
mailing, by certified mail, return receipt
requested,
such
the
copy to
the
physician or hospital
healthcare provider within
such
sixty-day
the thirty-day period. Filing of a medical claim in a court within the
sixty
thirty
days
provided for cancellation of the arbitration agreement by the
patient will cancel the agreement without any further action by
the patient. Date: ................................................................ Signature of Provider of Medical Services................................................................ Signature of Patient"(B) As used in this section the terms "hospital" and
"physician" have the meanings set forth in division (D) of
section
2305.11 of the Revised Code. The provisions of this
division
apply to hospitals, doctors of medicine, doctors of
osteopathic
medicine, and doctors of podiatric medicine.
Sec. 2743.02. (A)(1) The state hereby waives its immunity
from liability and consents to be sued, and have its liability
determined, in the court of claims created in this chapter in
accordance with the same rules of law applicable to suits between
private parties, except that the determination of liability is
subject to the limitations set forth in this chapter and, in the
case of state universities or colleges, in section 3345.40 of the
Revised Code, and except as provided in division (A)(2) of this
section. To the extent that the state has previously consented
to
be sued, this chapter has no applicability. Except in the case of a civil action filed by the state,
filing a civil action in the court of claims results in a
complete
waiver of any cause of action, based on the same act or
omission,
which the filing party has against any officer or
employee, as
defined in section 109.36 of the Revised Code. The
waiver shall
be void if the court determines that the act or
omission was
manifestly outside the scope of the officer's or
employee's office
or employment or that the officer or employee
acted with malicious
purpose, in bad faith, or in a wanton or
reckless manner. (2) If a claimant proves in the court of claims that an
officer or employee, as defined in section 109.36 of the Revised
Code, would have personal liability for
his
the officer's or
employee's acts or omissions but
for the fact that the officer or
employee has personal immunity
under section 9.86 of the Revised
Code, the state shall be held
liable in the court of claims in any
action that is timely filed
pursuant to section 2743.16 of the
Revised Code and that is based
upon the acts or omissions. (B) The state hereby waives the immunity from liability of
all hospitals owned or operated by one or more political
subdivisions and consents for them to be sued, and to have their
liability determined, in the court of common pleas, in accordance
with the same rules of law applicable to suits between private
parties, subject to the limitations set forth in this chapter.
This division is also applicable to hospitals owned or operated
by
political subdivisions which have been determined by the
supreme
court to be subject to suit prior to July 28, 1975. (C) Any hospital, as defined
under
in section
2305.11
2305.113 of the
Revised Code, may purchase liability insurance
covering its
operations and activities and its agents, employees,
nurses,
interns, residents, staff, and members of the governing
board and
committees, and, whether or not such insurance is
purchased, may,
to such extent as its governing board considers
appropriate,
indemnify or agree to indemnify and hold harmless any
such person
against expense, including attorney's fees, damage,
loss, or
other liability arising out of, or claimed to have arisen
out of,
the death, disease, or injury of any person as a result of
the
negligence, malpractice, or other action or inaction of the
indemnified person while acting within the scope of
his
the
indemnified person's duties or engaged in activities at the
request or
direction, or for the benefit, of the hospital. Any
hospital electing to
indemnify
such persons, or to agree to so
indemnify, shall reserve such
funds as are necessary, in the
exercise of sound and prudent
actuarial judgment, to cover the
potential expense, fees, damage,
loss, or other liability. The
superintendent of insurance may
recommend, or, if such hospital
requests
him
the superintendent
to do so, the
superintendent shall
recommend, a specific amount for any period
that, in
his
the
superintendent's opinion, represents such a
judgment. This
authority is in addition to any authorization otherwise
provided
or
permitted by law. (D) Recoveries against the state shall be reduced by the
aggregate of insurance proceeds, disability award, or other
collateral recovery received by the claimant. This division does
not apply to civil actions in the court of claims against a state
university or college under the circumstances described in
section
3345.40 of the Revised Code. The collateral benefits
provisions
of division (B)(2) of that section apply under those
circumstances. (E) The only defendant in original actions in the court of
claims is the state. The state may file a third-party complaint
or counterclaim in any civil action, except a civil action for
two
thousand five hundred dollars or less, that is filed in the
court
of claims. (F) A civil action against an officer or employee, as
defined in section 109.36 of the Revised Code, that alleges that
the officer's or employee's conduct was manifestly outside the
scope of
his
the officer's or employee's employment or official
responsibilities, or that the
officer or employee acted with
malicious purpose, in bad faith,
or in a wanton or reckless manner
shall first be filed against
the state in the court of claims,
which has exclusive, original
jurisdiction to determine,
initially, whether the officer or
employee is entitled to personal
immunity under section 9.86 of
the Revised Code and whether the
courts of common pleas have
jurisdiction over the civil action. The filing of a claim against an officer or employee under
this division tolls the running of the applicable statute of
limitations until the court of claims determines whether the
officer or employee is entitled to personal immunity under
section
9.86 of the Revised Code. (G) Whenever a claim lies against an officer or employee who
is a member of
the Ohio national guard, and the officer or
employee was, at the time of the
act or omission complained of,
subject to the "Federal Tort Claims Act," 60
Stat. 842 (1946), 28
U.S.C. 2671, et seq., then the Federal Tort Claims Act is
the
exclusive remedy of the claimant and the state has no liability
under this
section.
Sec. 2743.43. (A) No person shall be deemed competent to
give expert testimony on the liability issues in a medical claim,
as defined in
division (D)(3) of section
2305.11
2305.113 of the
Revised
Code, unless: (1) Such person is licensed to practice medicine and
surgery, osteopathic medicine and surgery, or podiatric medicine
and surgery by the state medical board or by the licensing
authority of any state; (2) Such person devotes three-fourths of
his
the person's
professional
time to the active clinical practice of medicine or
surgery,
osteopathic medicine and surgery, or podiatric medicine
and
surgery, or to its instruction in an accredited university. (B) Nothing in division (A) of this section shall be
construed to limit the power of the trial court to adjudge the
testimony of any expert witness incompetent on any other ground.
(C) Nothing in division (A) of this section shall be
construed to limit the power of the trial court to allow the
testimony of any other expert witness that is relevant to the
medical claim involved.
Sec. 2919.16. As used in sections 2919.16 to 2919.18 of the
Revised Code: (A) "Fertilization" means the fusion of a human spermatozoon
with a human
ovum. (B) "Gestational age" means the age of an unborn human as
calculated from the first day of the last menstrual period of a
pregnant woman. (C) "Health care facility" means a hospital, clinic,
ambulatory surgical treatment center, other center, medical
school, office of a physician, infirmary, dispensary, medical
training institution, or other institution or location in or at
which medical care, treatment, or diagnosis is provided to a
person. (D) "Hospital" has the same meanings as in sections 2108.01,
3701.01, and
5122.01 of the Revised Code. (E) "Live birth" has the same meaning as in division (A) of
section 3705.01
of the Revised Code. (F) "Medical emergency" means a condition that a pregnant
woman's physician determines, in good faith and in the exercise of
reasonable
medical judgment, so complicates the woman's
pregnancy
as to necessitate the immediate performance or
inducement of an
abortion in order to prevent the death of the
pregnant woman or to
avoid a serious risk of the substantial and
irreversible
impairment of a major bodily function of the
pregnant woman that
delay in the performance or inducement of
the abortion would
create. (G) "Physician" has the same meaning as in section
2305.11
2305.113 of the Revised Code. (H) "Pregnant" means the human female reproductive
condition, that commences
with fertilization, of having a
developing fetus. (I) "Premature infant" means a human whose live birth occurs
prior to
thirty-eight weeks of gestational age. (J) "Serious risk of the substantial and irreversible
impairment of
a major bodily function" means any medically
diagnosed condition
that so complicates the pregnancy of the woman
as to directly or
indirectly cause the substantial and
irreversible impairment of
a major bodily function, including, but
not limited to, the following
conditions: (1) Pre-eclampsia; (2) Inevitable abortion; (3) Prematurely ruptured membrane; (4) Diabetes; (5) Multiple sclerosis. (K) "Unborn human" means an individual organism of the
species homo sapiens from fertilization until live birth. (L) "Viable" means the stage of development of a
human fetus
at which in the determination of a physician, based
on the
particular facts of a woman's pregnancy that are known to
the
physician and in light of medical
technology and information
reasonably available to the physician, there is
a realistic
possibility of the maintaining and nourishing of a life outside of
the womb with or without temporary artificial life-sustaining
support.
Sec. 3923.63. (A) Notwithstanding section 3901.71 of the
Revised Code, each
individual or group policy
of sickness and
accident insurance delivered, issued for delivery, or renewed
in
this state that provides maternity benefits shall provide coverage
of
inpatient care and follow-up care for a mother and her newborn
as follows: (1) The policy shall cover a
minimum of forty-eight hours of
inpatient care following a normal vaginal
delivery and a minimum
of
ninety-six hours of inpatient care following a cesarean
delivery.
Services covered as inpatient care shall include
medical,
educational, and any other services that are consistent
with the inpatient
care recommended in the protocols and
guidelines developed by national
organizations that represent
pediatric, obstetric, and nursing
professionals. (2) The policy shall cover a physician-directed source of
follow-up care.
Services covered as follow-up care shall include
physical
assessment of the mother and newborn, parent education,
assistance and training in breast or bottle feeding, assessment
of
the home support system, performance of any medically
necessary
and appropriate clinical tests, and any other services
that are
consistent with the follow-up care recommended in the
protocols
and guidelines developed by national organizations
that represent
pediatric, obstetric, and nursing
professionals. The coverage
shall apply to services provided in a medical
setting or through
home health care visits. The coverage shall apply to a
home
health care visit only if the health care professional who
conducts the
visit is knowledgeable and experienced in maternity
and newborn care. When a decision is made in accordance with division (B) of
this
section to discharge a mother or newborn prior to the
expiration of the
applicable number of hours of inpatient care
required to be covered, the
coverage of follow-up care shall apply
to all follow-up care that is provided
within seventy-two hours
after discharge. When a
mother or newborn receives
at least the
number of hours of inpatient care required to be covered, the
coverage of follow-up care shall apply to follow-up care that is
determined to
be medically necessary by the health care
professionals responsible for
discharging the mother or newborn. (B) Any decision to
shorten the length of inpatient stay to
less than that specified
under division (A)(1) of this
section
shall be made by the physician attending the mother or
newborn,
except that if a nurse-midwife is attending the mother
in
collaboration with a physician, the decision may be made by
the
nurse-midwife. Decisions regarding early discharge shall be
made
only after conferring with the mother or a person
responsible for
the mother or newborn. For purposes of this
division, a person
responsible for the mother or newborn may
include a parent,
guardian, or any other person with authority
to make medical
decisions for the mother or newborn. (C)(1) No sickness
and accident insurer may do either of the
following: (a) Terminate the participation of a health
care
professional or health care facility as a provider under a
sickness and accident insurance policy solely for making
recommendations for inpatient or follow-up care for a particular
mother or newborn that are consistent with the care required to
be
covered by this section; (b) Establish or offer monetary or other
financial
incentives for the purpose of encouraging a person to
decline the
inpatient or follow-up care required to be covered
by this
section. (2) Whoever violates division
(C)(1)(a)
or (b) of this
section has engaged in
an unfair and deceptive act or practice in
the business of
insurance under sections 3901.19 to 3901.26 of the
Revised
Code. (D) This section does
not do any of the following: (1) Require a policy to
cover inpatient or follow-up care
that is not received in accordance with the
policy's terms
pertaining to the health care professionals and
facilities from
which an individual is authorized to receive
health care services; (2) Require a mother or newborn to stay in a hospital
or
other inpatient setting for a fixed period of time following
delivery; (3) Require a child to be delivered in a hospital or
other
inpatient setting; (4) Authorize a nurse-midwife to practice beyond the
authority to practice nurse-midwifery in accordance with
Chapter
4723. of the
Revised
Code; (5) Establish minimum standards of medical diagnosis,
care
or treatment for inpatient or follow-up care for a mother
or
newborn. A deviation from the care required to be covered
under
this section shall not, solely on the basis of this section, give
rise to a medical claim or derivative medical claim, as those
terms are defined in section
2305.11
2305.113 of the
Revised
Code.
Sec. 3923.64. (A) Notwithstanding section 3901.71 of the
Revised Code, each
public employee benefit
plan established or
modified in this state that provides maternity benefits
shall
provide coverage of inpatient care and follow-up care for a mother
and her
newborn as follows: (1) The plan shall cover a minimum of forty-eight hours of
inpatient care
following a normal vaginal
delivery and a minimum
of ninety-six hours of inpatient care following a
cesarean
delivery.
Services covered as inpatient care shall include
medical,
educational, and any other services that are consistent
with the inpatient
care recommended in the protocols and
guidelines developed by national
organizations that represent
pediatric, obstetric, and nursing professionals. (2) The plan shall cover a physician-directed source of
follow-up care.
Services covered as follow-up care shall include
physical
assessment of the mother and newborn, parent education,
assistance and training in breast or bottle feeding, assessment
of
the home support system, performance of any medically
necessary
and appropriate clinical tests, and any other services
that are
consistent with the follow-up care recommended in the
protocols
and guidelines developed by national organizations
that represent
pediatric, obstetric, and nursing
professionals. The coverage
shall apply to services provided in a medical
setting or through
home health care visits. The coverage shall apply to a
home
health care visit only if the health care professional who
conducts the
visit is knowledgeable and experienced in maternity
and newborn care. When a decision is made in accordance with division (B) of
this
section to discharge a mother or newborn prior to the
expiration of the
applicable number of hours of inpatient care
required to be covered, the
coverage of follow-up care shall apply
to all follow-up care that is provided
within seventy-two hours
after discharge. When a
mother or newborn receives
at least the
number of hours of inpatient care required to be covered, the
coverage of follow-up care shall apply to follow-up care that is
determined to
be medically necessary by the health care
professionals responsible for
discharging the mother or newborn. (B) Any decision to
shorten the length of inpatient stay to
less than that specified
under division (A)(1) of this
section
shall be made by the physician attending the mother or
newborn,
except that if a nurse-midwife is attending the mother
in
collaboration with a physician, the decision may be made by
the
nurse-midwife. Decisions regarding early discharge shall be
made
only after conferring with the mother or a person
responsible for
the mother or newborn. For purposes of this
division, a person
responsible for the mother or newborn may
include a parent,
guardian, or any other person with authority
to make medical
decisions for the mother or newborn. (C)(1) No public
employer who offers an employee benefit
plan may do either of
the following: (a) Terminate the participation of a health
care
professional or health care facility as a provider under
the plan
solely for making recommendations for inpatient or
follow-up care
for a particular mother or newborn that are
consistent with the
care required to be covered by this
section; (b) Establish or offer monetary or other
financial
incentives for the purpose of encouraging a person to
decline the
inpatient or follow-up care required to be covered
by this
section. (2) Whoever violates division
(C)(1)(a)
or (b) of this
section has engaged in
an unfair and deceptive act or practice in
the business of
insurance under sections 3901.19 to 3901.26 of the
Revised
Code. (D) This section does
not do any of the following: (1) Require a plan to
cover inpatient or follow-up care that
is not received in accordance with the
plan's terms pertaining to
the health care professionals and
facilities from which an
individual is authorized to receive
health care services; (2) Require a mother or newborn to stay in a hospital
or
other inpatient setting for a fixed period of time following
delivery; (3) Require a child to be delivered in a hospital or
other
inpatient setting; (4) Authorize a nurse-midwife to practice beyond the
authority to practice nurse-midwifery in accordance with
Chapter
4723. of the
Revised
Code; (5) Establish minimum standards of medical diagnosis,
care,
or treatment for inpatient or follow-up care for a mother
or
newborn. A deviation from the care required to be covered
under
this section shall not, solely on the basis of this section, give
rise to a medical claim or derivative medical claim, as those
terms are defined in section
2305.11
2305.113 of the
Revised
Code.
Sec. 3929.71. As used in sections 3929.71 to 3929.85 of
the
Revised Code, or any rules adopted pursuant thereto: (A) "Medical malpractice insurance" means insurance
coverage
against the legal liability of the insured and against
loss,
damage, or expense incident to a claim arising out of the
death,
disease, or injury of any person as the result of
negligence or
malpractice in rendering professional service by
any licensed
physician, podiatrist, or hospital, as those terms
are defined in
section
2305.11
2305.113 of the Revised Code. (B) "Association" means the nonprofit unincorporated joint
underwriting association established pursuant to section 3929.72
of the Revised Code. (C) "Net direct premiums" means gross direct premiums
written on liability insurance including the liability component
of multiple peril package policies as computed by the
superintendent of insurance less return premiums or the unused or
unabsorbed portions of premium deposits.
Sec. 3929.88. Every insurance company in this state shall file with the department of insurance all information about the salaries, bonuses, or other compensation of executive officers of and members of the boards of directors of the company. Any information that is filed with the department under this section is open to public inspection under section 149.43 of the Revised Code.
Sec. 5111.018. (A) The provision of medical assistance
under
this chapter shall include coverage of inpatient care and
follow-up care for a
mother and her newborn as follows: (1) The medical assistance program shall cover
a minimum of
forty-eight hours of inpatient care following a normal vaginal
delivery and a
minimum of ninety-six hours of inpatient care
following a cesarean delivery.
Services covered as inpatient care
shall include medical,
educational, and any other services that
are consistent with the inpatient
care recommended in the
protocols and guidelines developed by national
organizations that
represent pediatric, obstetric, and nursing professionals. (2) The medical assistance program shall cover a
physician-directed source
of follow-up care. Services covered as
follow-up care shall include physical
assessment of the mother and
newborn, parent education,
assistance and training in breast or
bottle feeding, assessment
of the home support system, performance
of any medically
necessary and appropriate clinical tests, and any
other services
that are consistent with the follow-up care
recommended in the
protocols and guidelines developed by national
organizations
that represent pediatric, obstetric, and nursing
professionals. The coverage shall apply to services provided in a
medical
setting or through home health care visits. The coverage
shall apply to a
home health care visit only if the health care
professional who conducts the
visit is knowledgeable and
experienced in maternity and newborn care. When a decision is made in accordance with division (B) of
this
section to discharge a mother or newborn prior to the
expiration of the
applicable number of hours of inpatient care
required to be covered, the
coverage of follow-up care shall apply
to all follow-up care that is provided
within forty-eight hours
after discharge. When a mother or newborn receives
at least the
number of hours of inpatient care required to be covered, the
coverage of follow-up care shall apply to follow-up care that is
determined to
be medically necessary by the health care
professionals responsible for
discharging the mother or newborn. (B) Any decision to
shorten the length of inpatient stay to
less than that specified
under division (A)(1) of this
section
shall be made by the physician attending the mother or
newborn,
except that if a nurse-midwife is attending the mother
in
collaboration with a physician, the decision may be made by
the
nurse-midwife. Decisions regarding early discharge shall be
made
only after conferring with the mother or a person
responsible for
the mother or newborn. For purposes of this
division, a person
responsible for the mother or newborn may
include a parent,
guardian, or any other person with authority
to make medical
decisions for the mother or newborn. (C) The department of job and family services, in
administering the
medical assistance program,
may not do either of
the following: (1) Terminate the participation of a health care
professional or health care facility as a provider under the
program solely for making recommendations for inpatient or
follow-up care for a particular mother or newborn that are
consistent with the care required to be covered by this
section; (2) Establish or offer monetary or other financial
incentives for the purpose of encouraging a person to decline
the
inpatient or follow-up care required to be covered by this
section. (D) This section does
not do any of the following: (1) Require the medical assistance program to cover
inpatient or follow-up
care that is not received in accordance
with the program's terms pertaining to
the health care
professionals and facilities from which an individual is
authorized to receive health care services. (2) Require a mother or newborn to stay in a hospital
or
other inpatient setting for a fixed period of time following
delivery; (3) Require a child to be delivered in a hospital or
other
inpatient setting; (4) Authorize a nurse-midwife to practice beyond the
authority to practice nurse-midwifery in accordance with
Chapter
4723. of the
Revised
Code; (5) Establish minimum standards of medical diagnosis,
care,
or treatment for inpatient or follow-up care for a mother
or
newborn. A deviation from the care required to be covered
under
this section shall not, on the basis of this section, give
rise to
a medical claim or derivative medical claim, as those
terms are
defined in section
2305.11
2305.113 of the
Revised
Code.
SECTION 2. That existing sections 1751.67, 2117.06, 2305.11,
2305.15, 2305.234, 2317.02, 2317.54, 2323.56, 2711.21, 2711.22,
2711.23, 2711.24, 2743.02, 2743.43, 2919.16, 3923.63, 3923.64,
3929.71, and 5111.018 and sections 2305.27 and 2323.57
of
the
Revised Code are hereby repealed.
SECTION 3. The General Assembly makes the following statement
of findings and intent: (A) The General Assembly finds:
(1) Medical malpractice litigation represents an increasing
danger to the availability and quality of health care in Ohio. (2) The number of medical malpractice claims resulting in
payments to plaintiffs has remained relatively constant. However,
the average award to plaintiffs has risen dramatically. Payments
to plaintiffs at or exceeding one million dollars have doubled in
the past three years. (3) This state has a rational and legitimate state interest
in stabilizing the cost of health care delivery by limiting the
amount of compensatory damages representing noneconomic loss
awards in medical malpractice actions. The overall cost of health
care to the consumer has been driven up by the fact that
malpractice litigation causes health care providers to over
prescribe, over treat, and over test their patients. The General
Assembly bases
its finding on this state interest upon the
following evidence:
(a) The Superintendent of Insurance has stated that medical
malpractice insurers' investments are not to blame for the
increase in medical malpractice insurance premiums. The vast
majority of these insurers' assets are invested in bonds and other
fixed income investments, not in stocks. Investment income
declined by less than one per cent from 1996 to 2001.
(b) Many medical malpractice insurers left the Ohio market as
they faced increasing losses, largely as a consequence of rapidly
rising compensatory damages and noneconomic loss awards in medical
malpractice actions. The Department of Insurance reports that
only six admitted carriers continue to actively write coverage in
Ohio at this time.
(c) As insurers have left the market, physicians, hospitals,
and other health care practitioners have had an increasingly
difficult time finding affordable medical malpractice insurance.
Some health care practitioners, including a large number of
specialists, have been forced out of the practice of medicine
altogether as a consequence. The Ohio State Medical Association
reports fifteen per cent of Ohio's physicians are considering or
have already relocated their practices due to rising medical
malpractice insurance costs.
(d) As stated in testimony provided by Lawrence E. Smarr,
President of the Physician Insurers Association of America,
medical malpractice costs have increased even while sixty-one per
cent of all claims filed against individual practitioners are
dropped or dismissed by the court and even while the defendants
win eighty per cent of all claims that are continued through trial
to verdict.
(e) The U.S. Department of Health and Human Services
published a report in 2002 stating that health care practitioners
in states with effective caps on noneconomic damages are
experiencing premium increases in the twelve to fifteen per cent
range, as compared to an average forty-four per cent increase in
states that do not cap noneconomic damage awards.
(4)(a) The distinction among claimants with a permanent
physical functional loss strikes a reasonable balance between
potential plaintiffs and defendants in consideration of the intent
of an award for noneconomic losses, while treating similar
plaintiffs equally, acknowledging that such distinctions do not
limit the award of actual economic damages. (b) The limit on compensatory damages representing
noneconomic loss to the greater of two hundred fifty thousand
dollars, or an amount equal to three times the plaintiff's
economic loss to a maximum of five hundred thousand dollars, and
the limit on the amount recoverable for noneconomic losses to the
greater of one million dollars or fifteen
thousand dollars
times
the number of years remaining in the
injured person's expected
life for
certain permanent and substantial
injuries and deformity,
is based
on testimony asking the members
of the General Assembly
to
recognize these distinctions and
stating that the cap amounts
are
similar to caps on awards adopted
by other states.
(c) In
Evans v. State (Sup. Ct. Alaska, August 30, 2002), No.
5618, 2002 Alas. LEXIS 135, one of the issues addressed by the
Alaska Supreme Court is whether the caps on noneconomic and
punitive damages constitute a violation of the right to a trial by
jury granted by the Alaska Constitution and the Seventh Amendment
to the United States Constitution. The Court held that the
damages caps do not violate the constitutional right to a trial by
jury and agreed with the reasoning by the Third Circuit Court of
Appeals in
Davis v. Omitowoju (3d Cir. 1989), 883 F.2d 1155, which
interpreted the Seventh Amendment to the United States
Constitution to allow damages caps. The Alaska Supreme Court
relied on the
Davis holding that a damages cap did not intrude on
the jury's fact-finding function, because the cap was a "policy
decision" applied after the jury's determination and did not
constitute a re-examination of the factual question of damages.
Evans v. State, supra, at pp. 11-12. It is the intent of the General Assembly that as a matter of
policy, the limits on compensatory damages for noneconomic loss
are applied after a jury's determination of the factual question
of damages. (d) A report from the U.S. Department of Health and Human
Services,
Update on the Medical Litigation Crisis: Not the Result
of the Insurance Cycle (Sept. 25, 2002), states that among states
that have adopted a two hundred fifty thousand dollar cap on
noneconomic damages are: Indiana, Colorado, California, Nebraska,
Utah, and Montana. These states, as well as others that have
imposed meaningful caps on noneconomic damages, report
significantly lower increases in average premium rates than those
states without caps. Limits on damages have been upheld by other
state supreme courts, as in
Fein v. Permanente Medical Group
(1985), 38 Cal.3d 137, 695 P.2d 665,
Johnson v. St. Vincent
Hospital, Inc. (1980), 273 Ind. 374, 404 N.E.2d 585, and
Evans v.
State,
supra. (5) This legislation does not affect the award of economic
damages, such as for lost wages and medical care. (6)(a) That a statute of repose on medical, dental,
optometric, and chiropractic claims strikes a rational balance
between the rights of prospective claimants and the rights of
hospitals and health care practitioners; (b) Over time, the availability of relevant evidence
pertaining to an incident and the availability of witnesses
knowledgeable with respect to the diagnosis, care, or treatment of
a prospective claimant becomes problematic. (c) The maintenance of records and other documentation
related to the delivery of medical services, for a period of time
in excess of the time period presented in the statute of repose,
presents an unacceptable burden to hospitals and health care
practitioners.
(d) Over time, the standards of care pertaining to various
health care services may change dramatically due to advances being
made in health care, science, and technology, thereby making it
difficult for expert witnesses and triers of fact to discern the
standard of care relevant to the point in time when the relevant
health care services were delivered.
(e) This legislation precludes unfair and unconstitutional
aspects of state litigation but does not affect timely medical
malpractice actions brought to redress legitimate grievances. (f) This legislation addresses the aspects of current
division (B) of section 2305.11 of the Revised Code, the
application of which was found by the Ohio Supreme Court to be
unconstitutional in
Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54. In
Dunn v. St. Francis Hospital, Inc. (Del. 1982), 401 Atl.2d 77, the Delaware Supreme Court found the Delaware three-year statute of repose constitutional as not violative of the Delaware Constitution's open courts provision.
(B) In consideration of these findings, the General Assembly
declares its intent to accomplish all of the following by the
enactment of this act: (1) To stem the exodus of medical malpractice insurers from
the Ohio market;
(2) To increase the availability of medical malpractice
insurance to Ohio's hospitals, physicians, and other health care
practitioners, thus ensuring the availability of quality health
care for the citizens of this state;
(3) To continue to hold negligent health care providers
accountable for their actions; (4) To preserve the right of patients to seek legal recourse
for medical malpractice. (5)(a) To abrogate the common law collateral source rules as
adopted by the Ohio Supreme Court in
Pryor v. Webber (1970), 23
Ohio St.2d 104, and reaffirmed in
Sorrell v. Thevenir (1994), 69
Ohio St.3d 415; (b) To address the aspects of former section 2317.45 of the
Revised Code that the Supreme Court found
in
Sorrell v.
Thevenir
(1994), 69 Ohio St.3d 415,
May v. Tandy Corp. (1994), 69 Ohio
St.3d 415, and
DePew v. Ogella (1994), 69 Ohio St.3d 610, to be
unconstitutional as being violative of the equal protection
provision of Section 2, the right to a trial by jury provision of
Section 5, and the due course of law, right to a remedy, and open
court provision of Section 16 of Article I of the Ohio
Constitution.
(C)(1) The Ohio General Assembly respectfully requests the
Ohio Supreme Court to uphold this intent in the courts of Ohio, to
reconsider its holding on damage caps in
State v. Sheward (1999),
Ohio St.3d 451, to reconsider its holding on the deductibility of
collateral source benefits in
Sorrel v. Thevenir (1994), 69 Ohio
St.3d 415, and to reconsider its holding on statutes of repose in
Sedar v. Knowlton Constr. Co. (1990), 49 Ohio St.3d 193, thereby
providing health care practitioners with access to affordable
medical malpractice insurance and maintaining the provision of
quality health care in Ohio.
(2) The General Assembly acknowledges the Court's authority
in prescribing rules governing practice and procedure in the
courts of this state as provided by Section 5 of Article IV of the
Ohio Constitution.
SECTION 4. (A) There is hereby created the Ohio Medical
Malpractice Commission consisting of seven members. The President
of the Senate shall appoint three of the members, and the Speaker
of the House of
Representatives shall appoint three of the
members. The Director of the
Department of Insurance or the
Director's designee shall be the
seventh member of the Commission.
Of the six members appointed by
the President of the Senate and
the Speaker of the House of
Representatives, one shall represent
the Ohio State Bar
Association, one shall represent the Ohio State
Medical
Association, and one shall represent the insurance
companies in
Ohio, and all of them shall have expertise in medical
malpractice
insurance issues.
(B) The Commission shall do all of the following:
(1) Study the effects of this act;
(2) Investigate the problems posed by, and the issues
surrounding, medical malpractice;
(3) Submit a report of its findings to the members of the
General Assembly not later than two years after the effective date
of this act.
(C) Any vacancy in the membership of the Commission shall be
filled in the same manner in which the original appointment was
made.
(D) The members of the Commission shall by majority vote
elect a chairperson from among themselves.
(E) Each member of the Commission shall be reimbursed by the
Department of Insurance for
expenses that are actually and
necessarily incurred in the
performance of the duties of the
member.
(F) The Department of Insurance shall provide any technical,
professional, and clerical employees that are necessary for the
Commission to perform its duties.
SECTION 5. (A)(1) In recognition of the statewide concern
over the rising cost of medical malpractice insurance and the
difficulty that health care practitioners have in locating
affordable medical malpractice insurance, the Superintendent of
Insurance shall study the feasibility of a Patient Compensation
Fund to cover medical malpractice claims, including, but not
limited to the following: (a) The financial responsibility limits for providers that
are covered in Sub. Senate Bill 281 of the 124th General Assembly,
and the Patient Compensation Fund; (b) The identification of methods of funding, which include,
but are not limited to, surcharges on providers and all insurers
authorized to write and engaged in writing liability insurance
policies including insurers covering such perils in multiple peril
package policies;
(c) The operation and administration of such a fund; (d) The participation requirements. (2) The Superintendent shall submit a copy of a preliminary
report by March 3, 2003, with a final report by May 1, 2003, to
the Governor, the Speaker of the Ohio House of Representatives,
the President of the Ohio Senate, and the chairpersons of the
committees of the General Assembly with jurisdiction over issues
relating to medical malpractice liability. The final report shall
include the Superintendent's recommendations for implementing the
Patient's Compensation Fund which the General Assembly shall
implement not later than July 1, 2003.
(B) The Superintendent of Insurance shall make
recommendations for the operation of a Patient's Compensation Fund
designed to assist health care practitioners in satisfying medical
malpractice awards above designated amounts. The Fund shall be
designed and funded as necessary to satisfy that portion of the
awards for damages for noneconomic loss under division (A)(2) of
section 2323.43 of the Revised Code resulting from medical
malpractice claims against hospitals, physicians, and other health
care practitioners in excess of three hundred fifty thousand
dollars to a maximum of five hundred thousand dollars. The
recommendations shall also provide for the satisfaction of the
awards for damages for noneconomic loss under division (A)(3) of
section 2323.43 of the Revised Code resulting from medical
malpractice claims against hospitals, physicians, and other health
care practitioners in excess of five hundred thousand dollars to a
maximum of the greater of one million dollars or fifteen thousand
dollars times the number of years remaining in the injured person's
expected life. The Fund shall act to satisfy awards for damages
in the amounts provided in this division only as to awards made
after the implementation of the Fund's operation. (C) In order to create a source of money for the Fund
sufficient to satisfy claims made against it for that portion of
medical malpractice awards identified in division (B) of this
section, the Superintendent shall also make recommendations for
another source of state or private money for the Fund. The money
in the Fund and any income from the Fund shall be used solely for
the satisfaction of claims made against the Fund and the expenses
of administering the Fund. The Superintendent's recommendations
shall include a mechanism for making, and the assessment of,
claims against the Fund. SECTION 6. The Department of Insurance shall annually,
beginning with information relative to the year 2002, provide the
Ohio General Assembly with a report on all of the following: (1)
medical malpractice insurance rates in Ohio; (2) the number of
insurers offering medical malpractice insurance in Ohio; and (3)
the number of insurer applications submitted to the Department of
Insurance seeking rate increases for medical malpractice
insurance, and the Department's decisions on those requests. The
Department of Insurance shall provide the annual report to the
Speaker and minority leader of the House of Representatives, the
President and minority leader of the Senate, the chairperson
and
ranking minority member of the insurance committees of both
houses, and the Ohio Medical Malpractice Commission, on or before
the thirty-first day of March of each year.
SECTION 7. (A) Sections 1751.67, 2117.06, 2305.11, 2305.15,
2305.234, 2317.02, 2317.54, 2323.56, 2711.21, 2711.22, 2711.23,
2711.24, 2743.02, 2743.43, 2919.16, 3923.63, 3923.64, 3929.71, and
5111.018 of the Revised Code, as amended by this act, and sections
2303.23, 2305.113, 2323.41, 2323.42, 2323.43, and 2323.55 of the
Revised Code, as enacted by this act, apply to civil actions upon
a medical claim, dental claim, optometric claim, or chiropractic
claim in which the act or omission that constitutes the alleged
basis of the claim occurs on or after the
effective date of this
act. (B) As used in this section, "medical claim," "dental
claim," "optometric claim," and
"chiropractic claim" have the same
meanings as in section 2305.113
of the Revised Code.
SECTION 8. If any item of law that constitutes the whole or
part of a section of law contained in this act, or if any
application of any item of law that constitutes the whole or part
of a section of law contained in this act, is held invalid, the
invalidity does not affect other items of law or applications of
items of law that can be given effect without the invalid item of
law or application. To this end, the items of law of which the
sections contained in this act are composed, and their
applications, are independent and severable.
SECTION 9. If any item of law that constitutes the whole or
part of a section of law contained in this act, or if any
application of any item of law contained in this act, is held to
be preempted by federal law, the preemption of the item of law or
its application does not affect other items of law or applications
that can be given affect. The items of law of which the sections
of this act are composed, and their applications, are independent
and severable.
SECTION 10. Section 2117.06 of the Revised Code is
presented
in
this act as a composite of the section as amended by
both Sub.
H.B. 85 and Sub. S.B. 108 of
the 124th General
Assembly. The
General Assembly, applying the
principle stated in
division (B) of
section 1.52 of the Revised
Code that amendments
are to be
harmonized if reasonably capable of
simultaneous
operation, finds
that the composite is the resulting
version of
the section in
effect prior to the effective date of
the section
as presented in
this act.
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