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Am. Sub. S. B. No. 80 As Passed by the HouseAs Passed by the House
125th General Assembly | Regular Session | 2003-2004 |
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Senators Stivers, Hottinger, Goodman, Wachtmann, Amstutz, Randy Gardner, Austria, Nein, Schuring, Armbruster, Coughlin, Carey, Harris, Mumper, Schuler
Representatives Buehrer, Calvert, Carmichael, Cates, Clancy, Collier, D. Evans, Faber, Flowers, Gibbs, Gilb, Hagan, Hoops, Martin, Raga, Reidelbach, Schaffer, Schmidt, Schneider, Setzer, G. Smith, Taylor, Trakas, Wagner, Webster, White, Widener, Widowfield, Wolpert
A BILL
To amend sections 1533.18, 1701.76, 1701.82, 1775.14, 2117.06, 2125.02, 2125.04, 2305.01, 2305.03, 2305.10, 2305.113, 2305.234, 2305.25, 2307.011, 2307.23, 2307.29, 2307.60, 2307.71, 2307.75, 2307.80, 2315.01, 2315.21, 2315.32, 2315.33, 2315.34, 2315.36, 2323.51, 2505.02, 3719.81, 4507.07 4513.263, 4713.02, 4715.42, 4723.01, 4723.03, 4723.28, 4723.43, 4723.44, 4723.48, 4723.482, 4729.01, and 4731.22; to enact sections 901.52, 1519.07, 2305.131, 2305.36, 2307.711, 2307.97, 2315.18, 2315.19, 2315.20, and 2323.44; and to repeal sections 2315.41, 2315.42, 2315.43, 2315.44, 2315.45, and 2315.46 of the Revised Code to make changes related to the award of certain damages, collateral benefits evidence, and contributory fault in tort actions; to establish a statute of repose for certain product liability claims and claims based on unsafe conditions of real property improvements and to make other changes related to product liability claims; to provide that the product liability statutes are intended to abrogate common law product liability causes of action; to enact a conflicts of law provision for statutes of limitation in civil actions; to modify the provisions on frivolous conduct in filing civil actions; to make other changes related to civil actions; to provide qualified immunity from civil damages for food manufacturers, sellers, and trade associations for claims resulting from a person's cumulative consumption, obesity, or weight gain or any health condition related to cumulative consumption, obesity, or weight gain; to prohibit imputing any assurances or assumption of liability regarding public access to premises used for growing agricultural produce; to preclude assumption of liability regarding the use of recreational trails; to modify the civil immunity for health care professionals and health care workers; to specify the nurses who may refer to themselves as advanced practice nurses; to eliminate obsolete references to pilot programs for advanced practice nurses; to establish limitations on successor asbestos-related liabilities relating to corporations; and to require the State Dental Board to issue volunteer certificates to retired dental practitioners upon submission of a complete application.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1533.18, 1701.76, 1701.82, 1775.14, 2117.06, 2125.02, 2125.04, 2305.01, 2305.03, 2305.10, 2305.113, 2305.234, 2305.25, 2307.011, 2307.23, 2307.29, 2307.60, 2307.71, 2307.75, 2307.80, 2315.01, 2315.21, 2315.32, 2315.33, 2315.34, 2315.36, 2323.51, 2505.02, 3719.81, 4507.07, 4513.263, 4713.02, 4715.42, 4723.01, 4723.03, 4723.28, 4723.43, 4723.44, 4723.48, 4723.482, 4729.01, and 4731.22 be amended and sections 901.52, 1519.07, 2305.131, 2305.36, 2307.711, 2307.97, 2315.18, 2315.19, 2315.20, and 2323.44 of the Revised Code be enacted to read as follows:
Sec. 901.52. (A) As used in this section, "tort action" has the same meaning as in section 2305.35 of the Revised Code.
(B) In a tort action, in the absence of willful or wanton misconduct or intentionally tortious conduct, no owner, lessee, renter, or operator of premises that are open to the public for direct access to growing agricultural produce shall be imputed to do either of the following:
(1) Extend any assurance to a person that the premises are safe from naturally occurring hazards merely by the act of giving permission to the person to enter the premises or by receiving consideration for the produce picked by the person;
(2) Assume responsibility or liability for injury, death, or loss to person or property allegedly resulting from the natural condition of the terrain of the premises or from the condition of the terrain resulting from cultivation of soil. Sec. 1519.07. (A) As used in this section:
(1) "Intentional tort" means an injury to person or property that the tortfeasor intentionally caused, to which the tortfeasor intentionally contributed, or that the tortfeasor knew or believed was substantially certain to result from the tortfeasor's conduct. (2) "Premises" means a parcel of land together with any waters, buildings, or structures on it that is privately owned and that is directly adjacent to a recreational trail.
(3) "Recreational trail" means a public trail that is used for hiking, bicycling, horseback riding, ski touring, canoeing, or other nonmotorized forms of recreational travel and that interconnects state parks, forests, wildlife areas, nature preserves, scenic rivers, or other places of scenic or historic interest.
(4) "User of a recreational trail" means a person who, in the course of using a recreational trail, enters on premises without first obtaining express permission to be there from the owner, lessee, or occupant of the premises.
(B)(1) An owner, lessee, or occupant of premises does not owe any duty to a user of a recreational trail to keep the premises safe for entry or use by a user of a recreational trail.
(2) An owner, lessee, or occupant of premises does not assume, has no responsibility for, does not incur liability for, and is not liable for any injury to person or property caused by any act of a user of a recreational trail. (C) This section does not apply to intentional torts.
Sec. 1533.18. As used in sections 1533.18 and 1533.181 of
the Revised Code: (A) "Premises" means all privately-owned lands, ways,
and
waters, and any buildings and structures thereon, and all privately owned and
state-owned lands, ways, and waters leased to a private person,
firm,
or organization,
including any buildings and
structures
thereon. (B) "Recreational user" means a person to whom permission
has been granted, without the payment of a fee or consideration
to
the owner, lessee, or occupant of premises, other than a fee
or
consideration paid to the state or any agency
of the
state, or a lease payment or fee paid to the owner of privately owned lands, to
enter
upon premises to hunt, fish, trap, camp, hike,
swim,
operate
a
snowmobile or all-purpose vehicle, or
engage in
other
recreational
pursuits.
(C) "All-purpose vehicle" has the same meaning as in
section
4519.01 of the Revised Code.
Sec. 1701.76. (A)(1) Provided the provisions of Chapter
1704. of the Revised Code do not prevent the transaction from
being effected, a lease, sale, exchange, transfer, or other
disposition of all, or substantially all, of the assets, with or
without the good will, of a corporation, if not made in the usual
and regular course of its business, may be made upon such the terms
and conditions and for such the consideration, which that may consist, in
whole or in part, of money or other property of any description,
including shares or other securities or promissory obligations of
any other corporation, domestic or foreign, as that may be authorized
as follows: (a) By the directors, either before or after authorization
by the shareholders as required in this section; and (b) At a meeting of the shareholders held for such that
purpose, by the affirmative vote of the holders of shares
entitling them to exercise two-thirds of the voting power of the
corporation on such the proposal, or, if the articles so provide or
permit, by the affirmative vote of a greater or lesser
proportion, but not less than a majority, of such the voting power,
and by such the affirmative vote of the holders of shares of any
particular class as that is required by the articles. (2) At the shareholder meeting described in division
(A)(1)(b) of this section or at any subsequent shareholder
meeting, shareholders, by the same vote that is required to
authorize the lease, sale, exchange, transfer, or other
disposition of all, or substantially all, of the assets, with or
without the good will, of the corporation, may grant authority to
the directors to establish or amend any of the terms and
conditions of the transaction, except that the shareholders shall not
authorize the directors to do any of the following: (a) Alter or change the amount or kind of shares,
securities, money, property, or rights to be received in exchange
for the assets; (b) Alter or change to any material extent the amount or
kind of liabilities to be assumed in exchange for the assets; (c) Alter or change any other terms and conditions of the
transaction if any of the alterations or changes, alone or in the
aggregate, would materially adversely affect the shareholders or
the corporation. (3) Notice of the meeting of the shareholders described in
division (A)(1)(b) of this section shall be given to all
shareholders whether or not entitled to vote at the meeting and
shall be accompanied by a copy or summary of the terms of the
transaction. (B) The corporation by its directors may abandon such the
transaction under this section, subject to the contract rights of other persons, if
the power of abandonment is conferred upon the directors either
by the terms of the transaction or by the same vote of
shareholders and at the same meeting of shareholders as that
referred to in division (A)(1)(b) of this section or at any
subsequent meeting. (C) Dissenting holders of shares of any class, whether or
not entitled to vote, shall be entitled to relief under section
1701.85 of the Revised Code. (D) An action to set aside a conveyance by a corporation,
on the ground that any section of the Revised Code applicable to
the lease, sale, exchange, transfer, or other disposition of all,
or substantially all, of the assets of such that corporation has not
been complied with, shall be brought within ninety days after
such that transaction, or such the action shall be forever barred. (E) If a resolution of dissolution is adopted pursuant to
section 1701.86 of the Revised Code, the directors may dispose of
all, or substantially all, of the corporation's assets without
the necessity of a shareholders' authorization under this
section.
(F) The terms and conditions of any transaction under this section shall be subject to the limitations specified in section 2307.97 of the Revised Code.
Sec. 1701.82. (A) When a merger or consolidation becomes
effective, all of the following apply: (1) The separate existence of each constituent entity
other than the surviving entity in a merger shall cease, except
that whenever a conveyance, assignment, transfer, deed, or other
instrument or act is necessary to vest property or rights in the
surviving or new entity, the officers, general partners, or other
authorized representatives of the respective constituent entities
shall execute, acknowledge, and deliver such those instruments and do
such those acts. For these purposes, the existence of the constituent
entities and the authority of their respective officers,
directors, general partners, or other authorized representatives
is continued notwithstanding the merger or consolidation. (2) In the case of a consolidation, the new entity exists
when the consolidation becomes effective and, if it is a domestic
corporation, the articles contained in or provided for in the
agreement of consolidation shall be its original articles. In
the case of a merger in which the surviving entity is a domestic
corporation, the articles of the domestic surviving corporation
in effect immediately prior to the time the merger becomes
effective shall continue as its articles after the merger except
as otherwise provided in the agreement of merger. (3) The surviving or new entity possesses all assets and
property of every description, and every interest in the assets
and property, wherever located, and the rights, privileges,
immunities, powers, franchises, and authority, of a public as
well as of a private nature, of each constituent entity, and, subject to the limitations specified in section 2307.97 of the Revised Code, all
obligations belonging to or due to each constituent entity, all
of which are vested in the surviving or new entity without
further act or deed. Title to any real estate or any interest in
the real estate vested in any constituent entity shall not revert
or in any way be impaired by reason of such merger or
consolidation. (4) The Subject to the limitations specified in section 2307.97 of the Revised Code, the surviving or new entity is liable for all the
obligations of each constituent entity, including liability to
dissenting shareholders. Any claim existing or any action or
proceeding pending by or against any constituent entity may be
prosecuted to judgment, with right of appeal, as if the merger or
consolidation had not taken place, or the surviving or new entity
may be substituted in its place. (5) All Subject to the limitations specified in section 2307.97 of the Revised Code, all the rights of creditors of each constituent entity
are preserved unimpaired, and all liens upon the property of any
constituent entity are preserved unimpaired, on only the property
affected by such those liens immediately prior to the effective date of
the merger or consolidation. If a general partner of a
constituent partnership is not a general partner of the entity
surviving or the new entity resulting from the merger or
consolidation, then the former general partner shall have no
liability for any obligation incurred after the merger or
consolidation except to the extent that a former creditor of the
constituent partnership in which the former general partner was a
partner extends credit to the surviving or new entity reasonably
believing that the former general partner continued as a general
partner of the surviving or new entity. (B) If a general partner of a constituent partnership is
not a general partner of the entity surviving or the new entity
resulting from the merger or consolidation, the provisions of
division (B) of section 1782.434 of the Revised Code shall apply. (C) In the case of a merger of a domestic constituent
corporation into a foreign surviving corporation, limited
liability company, or limited partnership that is not licensed or
registered to transact business in this state or in the case of a
consolidation of a domestic constituent corporation into a new
foreign corporation, limited liability company, or limited
partnership, if the surviving or new entity intends to transact
business in this state and the certificate of merger or
consolidation is accompanied by the information described in
division (B)(4) of section 1701.81 of the Revised Code, then, on
the effective date of the merger or consolidation, the surviving
or new entity shall be considered to have complied with the
requirements for procuring a license or for registering to
transact business in this state as a foreign corporation, limited
liability company, or limited partnership, as the case may be. In such a
case, a copy of the certificate of merger or
consolidation certified by the secretary of state constitutes the
license certificate prescribed by the laws of this state for a
foreign corporation transacting business in this state or the application for
registration prescribed for a foreign limited partnership or limited liability
company. (D) Any action to set aside any merger or consolidation on
the ground that any section of the Revised Code applicable to the
merger or consolidation has not been complied with shall be
brought within ninety days after the effective date of such that
merger or consolidation or be forever barred. (E) As used in this section, "corporation" or "entity"
applies to both domestic and foreign corporations and entities
where the context so permits. In the case of a foreign
constituent entity or a foreign new entity, this section is
subject to the laws of the state under the laws of which the
entity exists or in which it has property. Sec. 1775.14. (A) Subject to section 1339.65 of the Revised
Code and except as provided in division (B) of this section,
all
partners are liable as follows: (1) Jointly and severally for everything chargeable to the
partnership under sections 1775.12 and 1775.13 of the Revised
Code. This joint and several liability is not subject to
section
2307.22, or 2315.36, or 2315.46 of
the
Revised Code with respect
to a
negligence
or other tort claim
that otherwise is subject to
any either of those sections. (2) Jointly for all other debts and obligations of the
partnership, but any partner may enter into a separate obligation
to perform a partnership contract. (B) Subject to divisions
(C)(1) and (2) of this section or
as otherwise provided
in a written agreement between the partners
of a registered limited liability
partnership, a partner in a
registered limited liability partnership is not
liable, directly
or indirectly, by way of indemnification, contribution,
assessment, or otherwise, for debts, obligations, or other
liabilities of any
kind of, or chargeable to, the partnership or
another partner or partners
arising from negligence or from
wrongful
acts, errors, omissions, or misconduct, whether or not
intentional
or
characterized as tort, contract, or otherwise,
committed or occurring while
the
partnership is a registered
limited liability partnership and committed or
occurring in the
course of the partnership business by another partner or an
employee, agent, or representative of the partnership. (C)(1) Division
(B) of this section does not affect the
liability of a partner in a registered limited liability
partnership for that
partner's own negligence, wrongful acts,
errors, omissions, or misconduct,
including that partner's own
negligence, wrongful acts, errors, omissions, or
misconduct in
directly supervising any other partner or any employee, agent,
or
representative of the partnership. (2) Division (B) of this section shall
not affect the
liability of a partner for liabilities imposed by
Chapters 5735.,
5739., 5743., and 5747. and
section 3734.908 of the Revised
Code. (D) A partner in a registered limited
liability partnership
is not a proper party to an action or proceeding by or
against a
registered limited liability partnership with respect to any debt,
obligation, or other liability of any kind described in division
(B) of this section, unless the partner is
liable under divisions
(C)(1) and (2) of this section.
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) After the appointment of an executor or administrator and prior to the filing of a final account or a certificate of termination, in one of the following manners: (a) To the executor or administrator in a writing; (b) To the executor or administrator in a writing, and to
the probate court by filing a copy of the writing with it; (c) 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.
(2) If the final account or certificate of termination has been filed, in a writing to those distributees of the decedent's estate who may share liability for the payment of the claim. (B) Except as provided in section 2117.061 of the Revised Code, all claims shall be presented within six months after
the
death of the decedent, whether or not the estate is released
from
administration or an executor or administrator is appointed
during
that six-month period. Every claim presented shall set
forth the
claimant's address. (C) Except as provided in section 2117.061 of the Revised Code, a claim that is not presented within six months
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
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 periods of limitation or periods prior to repose in
section
2125.02, 2305.09,
2305.10,
2305.11,
2305.113, or
2305.12
Chapter 2305. of
the
Revised Code, provided that no portion of any recovery on a
claim
brought pursuant to that section or any of those sections section in that chapter 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)(1)(b) 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 pursuant to section 2113.53 of the Revised Code and prior to the expiration of the time
for
the presentation 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 if a claim is presented prior to the filing of the final account and may be liable to the claimant if the claim is presented after the filing of the final account
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. 2125.02. (A)(1) Except as provided in this division,
an a civil action for wrongful death shall be brought in the name of the
personal representative of the decedent for the exclusive benefit
of the surviving spouse, the children, and the parents of the
decedent, all of whom are rebuttably presumed to have suffered
damages by reason of the wrongful death, and for the exclusive
benefit of the other next of kin of the decedent. A parent who
abandoned a minor child who is the decedent shall not receive any a
benefit in a wrongful death civil action for wrongful death brought under this
division. (2) The jury, or the court if the civil action for wrongful death is not
tried to a
jury, may award damages authorized by division
(B) of this
section, as it determines are proportioned to the
injury and loss
resulting to the beneficiaries described in
division (A)(1) of
this section by reason of the wrongful death
and may award the
reasonable funeral and burial expenses incurred
as a result of
the
wrongful death. In its verdict, the jury or
court shall set
forth
separately the amount, if any, awarded for
the reasonable
funeral
and burial expenses incurred as a result of
the wrongful
death. (3)(a) The date of the decedent's death fixes, subject to
division (A)(3)(b)(iii) of this section,
the status of all
beneficiaries of the civil action for wrongful death for
purposes of
determining the
damages suffered by them and the amount of damages
to be awarded.
A person who is conceived prior to the decedent's
death and who
is
born alive after
the decedent's death is a
beneficiary of the
action. (b)(i) In determining
the amount of damages to be awarded,
the jury or court may consider all factors existing at the time
of
the decedent's death that are relevant to a determination of
the
damages suffered by reason of the wrongful death. (ii) Consistent with the Rules of Evidence, any a
party to
an a civil
action for wrongful death may present evidence of the cost of
an
annuity in connection with any an issue of
recoverable future
damages. If such that evidence is presented, then,
in addition
to
the
factors described in division (A)(3)(b)(i) of this section
and,
if
applicable, division (A)(3)(b)(iii) of this section, the
jury
or
court may consider that evidence in determining
the future
damages
suffered by reason of the wrongful death. If such that
evidence is
presented, the present value in dollars
of any an
annuity is its
cost. (iii) Consistent with the Rules of Evidence, any a
party to
an a civil
action for wrongful death may present evidence that the
surviving
spouse of the decedent is remarried. If such that
evidence
is
presented, then, in addition to the factors described
in
divisions
(A)(3)(b)(i) and (ii) of this section, the jury or
court may
consider that evidence in determining
the damages
suffered by the
surviving spouse by reason of the wrongful death. (B) Compensatory damages may be awarded in an a civil action for
wrongful death and may include damages for the following: (1) Loss of support from the reasonably expected earning
capacity of the decedent; (2) Loss of services of the decedent; (3) Loss of the society of the decedent, including loss of
companionship, consortium, care, assistance, attention,
protection, advice, guidance, counsel, instruction, training, and
education, suffered by the surviving spouse, minor dependent
children,
parents, or next of kin of the decedent; (4) Loss of prospective inheritance to the decedent's
heirs
at law at the time of
the decedent's death; (5) The mental anguish incurred by the surviving spouse,
minor dependent children, parents, or next of kin of the decedent. (C) A personal representative appointed in this state,
with
the consent of the court making the appointment and at any
time
before or after the commencement of an a civil action for wrongful
death,
may settle with the defendant the amount to be paid. (D) An (1) Except as provided in division (D)(2) of this section, a civil action for wrongful death shall be commenced within
two years after the decedent's death. (2)(a) Except as otherwise provided in divisions (D)(2)(b), (c), (d), (e), (f), and (g) of this section or in section 2125.04 of the Revised Code, no cause of action for wrongful death involving a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used as a component in the production, construction, creation, assembly, or rebuilding of another product.
(b) Division (D)(2)(a) of this section does not apply if the manufacturer or supplier of a product engaged in fraud in regard to information about the product and the fraud contributed to the harm that is alleged in a product liability claim involving that product.
(c) Division (D)(2)(a) of this section does not bar a civil action for wrongful death involving a product liability claim against a manufacturer or supplier of a product who made an express, written warranty as to the safety of the product that was for a period longer than ten years and that, at the time of the decedent's death, has not expired in accordance with the terms of that warranty.
(d) If the decedent's death occurs during the ten-year period described in division (D)(2)(a) of this section but less than two years prior to the expiration of that period, a civil action for wrongful death involving a product liability claim may be commenced within two years after the decedent's death. (e) If the decedent's death occurs during the ten-year period described in division (D)(2)(a) of this section and the claimant cannot commence an action during that period due to a disability described in section 2305.16 of the Revised Code, a civil action for wrongful death involving a product liability claim may be commenced within two years after the disability is removed.
(f)(i) Division (D)(2)(a) of this section does not bar a civil action for wrongful death based on a product liability claim against a manufacturer or supplier of a product if the product involved is a substance or device described in division (B)(1), (2), (3), or (4) of section 2305.10 of the Revised Code and the decedent's death resulted from exposure to the product during the ten-year period described in division (D)(2)(a) of this section.
(ii) If division (D)(2)(f)(i) of this section applies regarding a civil action for wrongful death, the cause of action that is the basis of the action accrues upon the date on which the claimant is informed by competent medical authority that the decedent's death was related to the exposure to the product or upon the date on which by the exercise of reasonable diligence the claimant should have known that the decedent's death was related to the exposure to the product, whichever date occurs first. A civil action for wrongful death based on a cause of action described in division (D)(2)(f)(i) of this section shall be commenced within two years after the cause of action accrues and shall not be commenced more than two years after the cause of action accrues.
(g) Division (D)(2)(a) of this section does not bar a civil action for wrongful death based on a product liability claim against a manufacturer or supplier of a product if the product involved is a substance or device described in division (B)(5) of section 2315.10 of the Revised Code. If division (D)(2)(g) of this section applies regarding a civil action for wrongful death, the cause of action that is the basis of the action accrues upon the date on which the claimant is informed by competent medical authority that the decedent's death was related to the exposure to the product or upon the date on which by the exercise of reasonable diligence the claimant should have known that the decedent's death was related to the exposure to the product, whichever date occurs first. A civil action for wrongful death based on a cause of action described in division (D)(2)(g) of this section shall be commenced within two years after the cause of action accrues and shall not be commenced more than two years after the cause of action accrues. (E)(1) If the personal representative of a deceased minor
has actual knowledge or reasonable cause to believe that the
minor
was abandoned by a parent seeking to benefit from the a civil action for
wrongful
death action or if any person
listed in
division (A)(1)
of this
section who is permitted to benefit in from a civil action for
wrongful death
action
filed commenced
in relation to a
deceased minor has actual knowledge
or
reasonable
cause to believe that the minor was abandoned by a
parent seeking
to benefit from the wrongful death action, the
personal
representative or the person may file a motion in the
court in
which the wrongful death action is filed commenced requesting the
court to issue an order finding that the parent abandoned the
child minor and is not entitled to recover damages in the
wrongful
death
action based on the death of the deceased minor child. (2) The movant who files a motion described in division
(E)(1) of this section shall name the parent who abandoned the
child deceased minor and, whether or not that parent is a
resident of this
state,
the parent shall be served with a summons and a copy of
the
motion
in accordance with the Rules of Civil Procedure. Upon
the
filing
of the motion, the court shall conduct a hearing. In
the
hearing
on the motion, the movant has the burden of proving,
by a
preponderance of the evidence, that the parent abandoned the
deceased minor child. If, at the hearing, the court finds that
the movant has sustained that burden of proof, the court shall
issue an order that includes its finding findings that the
parent
abandoned
the deceased minor child and that, because of
the
prohibition set forth
in division (A)(1) of this section, the
parent
is not entitled to
recover damages in the wrongful death
action
based on the death of
the deceased minor child. (3) A motion requesting a court to issue an order finding
that the a specified parent abandoned the a minor
child and is not
entitled
to recover damages in the a civil action for wrongful death action based on the
death
of the deceased minor child may
be filed at any time
during
the
pendency of the wrongful death
action. (F) This section does not create a new cause of action or substantive legal right against any person involving a product liability claim. (G) As used in this section: (1)
"Annuity" means an annuity that would be purchased
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)(i) 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 division (F)(G)(1)(b)(ii) of
this section, is a stable insurance company that issues annuities
that are safe and desirable. (ii) In making determinations as described in division
(F)(G)(1)(b)(i) of this section, the superintendent shall be guided
by the principle that the jury or court in an a civil action for wrongful
death should be presented only with evidence as to the cost of
annuities that are safe and desirable for the beneficiaries of
such an the action who are awarded compensatory damages under
this
section. In making such the 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 a particular
insurance company in question involved 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 the determinations. (2)
"Future damages" means damages that result from the
wrongful death and that will accrue after the verdict or
determination of liability by the jury or court is rendered in
the civil
action for wrongful death. (3)
"Abandoned" means that a parent of a minor failed
without
justifiable cause to communicate with the minor, care for
the
minor, and provide for
the maintenance or support
of the minor
as
required by
law or judicial decree for a period of at
least one
year
immediately prior to the date of the death of the
minor. (4)
"Minor" means a person who is less than eighteen years
of
age.
(6) "Manufacturer," "product," "product liability claim," and "supplier" have the same meanings as in section 2307.71 of the Revised Code.
(H) Divisions (D), (G)(5), and (G)(6) of this section shall be considered to be purely remedial in operation and shall be applied in a remedial manner in any civil action commenced on or after the effective date of this amendment, in which those divisions are relevant, regardless of when the cause of action accrued and notwithstanding any other section of the Revised Code or prior rule of law of this state, but shall not be construed to apply to any civil action pending prior to the effective date of this amendment. Sec. 2125.04. In every civil action for wrongful death commenced
or attempted to be
commenced within the time specified by division (D)(1) or (D)(2)(c), (d), (e), (f), or (g) of
section
2125.02 of the
Revised Code, if a judgment for the plaintiff is
reversed or if
the plaintiff fails otherwise than upon the
merits,
and if the
time limited by such section any of those divisions for the
commencement of such the
action has
expired at the date of
such the reversal or failure, the
plaintiff or, if
the plaintiff
dies and the cause of action
survives,
the personal
representative
of the plaintiff may
commence
a new civil action for wrongful death within one year after such that date.
Sec. 2305.01. The Except as otherwise provided by this section or section 2305.03 of the Revised Code, the court of common pleas has original
jurisdiction in
all civil cases in which the sum or matter in
dispute exceeds the
exclusive original jurisdiction of county
courts and appellate
jurisdiction from the decisions of boards of
county commissioners. The court of common pleas shall not have jurisdiction, in any tort action to which the amounts apply, to award punitive or exemplary damages that exceed the amounts set forth in section 2315.21 of the Revised Code. The court of common pleas shall not have jurisdiction in any tort action to which the limits apply to enter judgment on an award of compensatory damages for noneconomic loss in excess of the limits set forth in section 2315.18 of the Revised Code.
The court of common pleas may on its own motion transfer
for
trial any action in the court to any municipal court in the
county
having concurrent jurisdiction of the subject matter of,
and the
parties to, the action, if the amount sought by the
plaintiff does
not exceed one thousand dollars and if the judge
or presiding
judge of the municipal court concurs in the proposed
transfer.
Upon the issuance of an order of transfer, the clerk
of courts
shall remove to the designated municipal court the
entire case
file. Any untaxed portion of the common pleas
deposit for court
costs shall be remitted to the municipal court
by the clerk of
courts to be applied in accordance with section
1901.26 of the
Revised Code, and the costs taxed by the municipal
court shall be
added to any costs taxed in the common pleas
court. The court of common pleas has jurisdiction in any action
brought pursuant to division (I) of section 3733.11 of the
Revised
Code if the residential premises that are the subject of
the
action are located within the territorial jurisdiction of the
court. The courts of common pleas of Adams, Athens, Belmont,
Brown,
Clermont, Columbiana, Gallia, Hamilton, Jefferson,
Lawrence,
Meigs, Monroe, Scioto, and Washington counties have
jurisdiction
beyond the north or northwest shore of the Ohio
river extending to
the opposite shore line, between the extended
boundary lines of
any adjacent counties or adjacent state. Each
of those courts of
common pleas has concurrent jurisdiction on
the Ohio river with
any adjacent court of common pleas that
borders on that river and
with any court of Kentucky or of West
Virginia that borders on the
Ohio river and that has jurisdiction
on the Ohio river under the
law of Kentucky or the law of West
Virginia, whichever is
applicable, or under federal law.
Sec. 2305.03. A civil action, (A) Except as provided in division (B) of this section and unless a different limitation is prescribed by
statute, can a civil action may be commenced only within the period prescribed in sections
2305.03 2305.04 to 2305.22, inclusive, of the Revised Code. When If interposed by proper
plea by a party to an action mentioned in such any of those sections, lapse of time shall
be a bar thereto to the action. (B) No civil action that is based upon a cause of action that accrued in any other state, territory, district, or foreign jurisdiction may be commenced and maintained in this state if the period of limitation that applies to that action under the laws of that other state, territory, district, or foreign jurisdiction has expired or the period of limitation that applies to that action under the laws of this state has expired.
Sec. 2305.10. An (A) Except as provided in division (C) of this section, an action based on a product liability claim and an action for bodily injury or injuring
personal property shall be
brought within two years after the
cause thereof arose of action accrues. Except as provided in divisions (B)(1), (2), (3), (4), and (5) of this section, a cause of action accrues under this division when the injury or loss to person or property occurs. (B)(1) For purposes of division (A) of this section, a cause of action for bodily injury that is not described in division (B)(2), (3), (4), or (5) of this section and that is caused by exposure to hazardous or toxic chemicals, ethical drugs, or ethical medical devices accrues upon the date on which the plaintiff is informed by competent medical authority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of reasonable diligence the plaintiff should have known that the plaintiff has an injury that is related to the exposure, whichever date occurs first. (2) For purposes of division (A) of this section, a
cause of
action for bodily
injury caused by exposure to asbestos or to
chromium in any of
its
chemical forms arises accrues upon the date
on which the plaintiff
is
informed by competent medical authority
that
the plaintiff has
been injured
by such an injury that is related to the exposure, or upon the date
on which, by the
exercise of
reasonable diligence,
the plaintiff should have
become aware known
that
the plaintiff had
been injured by has an injury that is related to the
exposure,
whichever
date occurs
first. (3) For purposes of division (A) of this section, a
cause of
action for bodily
injury incurred by a veteran through exposure to
chemical
defoliants or herbicides or other causative agents,
including
agent orange, arises accrues upon the date on which the
plaintiff is
informed by competent medical authority that
the plaintiff has
been injured
by such an injury that is related to the exposure, or upon the date on which by the exercise of reasonable diligence the plaintiff should have known that the plaintiff has an injury that is related to the exposure, whichever date occurs first. As used in this section,
"agent orange,"
"causative agent,"
and
"veteran" have the same meanings as in section 5903.21 of the
Revised Code.
(4) For purposes of division (A) of this section, a
cause of
action for bodily
injury which may be caused by exposure to
diethylstilbestrol or
other nonsteroidal synthetic estrogens,
including exposure before
birth, accrues upon the date on
which the plaintiff learns
from a
licensed
physician is informed by competent medical authority that
the plaintiff has an injury
which may be that is
related
to
such the exposure, or upon the
date on which by the exercise of
reasonable diligence
the
plaintiff should have become aware known
that
the plaintiff
has
an
injury which may be that is related to such the
exposure,
whichever date
occurs first. (5) For purposes of division (A) of this section, a cause of action for bodily injury caused by exposure to asbestos accrues upon the date on which the plaintiff is informed by competent medical authority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of reasonable diligence the plaintiff should have known that the plaintiff has an injury that is related to the exposure, whichever date occurs first. (C)(1) Except as otherwise provided in divisions (C)(2), (3), (4), (5), (6), and (7) of this section or in section 2305.19 of the Revised Code, no cause of action based on a product liability claim shall accrue against the manufacturer or supplier of a product later than ten years from the date that the product was delivered to its first purchaser or first lessee who was not engaged in a business in which the product was used as a component in the production, construction, creation, assembly, or rebuilding of another product.
(2) Division (C)(1) of this section does not apply if the manufacturer or supplier of a product engaged in fraud in regard to information about the product and the fraud contributed to the harm that is alleged in a product liability claim involving that product.
(3) Division (C)(1) of this section does not bar an action based on a product liability claim against a manufacturer or supplier of a product who made an express, written warranty as to the safety of the product that was for a period longer than ten years and that, at the time of the accrual of the cause of action, has not expired in accordance with the terms of that warranty.
(4) If the cause of action relative to a product liability claim accrues during the ten-year period described in division (C)(1) of this section but less than two years prior to the expiration of that period, an action based on the product liability claim may be commenced within two years after the cause of action accrues.
(5) If a cause of action relative to a product liability claim accrues during the ten-year period described in division (C)(1) of this section and the claimant cannot commence an action during that period due to a disability described in section 2305.16 of the Revised Code, an action based on the product liability claim may be commenced within two years after the disability is removed.
(6) Division (C)(1) of this section does not bar an action for bodily injury caused by exposure to asbestos if the cause of action that is the basis of the action accrues upon the date on which the plaintiff is informed by competent medical authority that the plaintiff has an injury that is related to the exposure, or upon the date on which by the exercise of reasonable diligence the plaintiff should have known that the plaintiff has an injury that is related to the exposure, whichever date occurs first. (7)(a) Division (C)(1) of this section does not bar an action based on a product liability claim against a manufacturer or supplier of a product if all of the following apply:
(i) The action is for bodily injury.
(ii) The product involved is a substance or device described in division (B)(1), (2), (3), or (4) of this section.
(iii) The bodily injury results from exposure to the product during the ten-year period described in division (C)(1) of this section.
(b) If division (C)(7)(a) of this section applies regarding an action, the cause of action accrues upon the date on which the claimant is informed by competent medical authority that the bodily injury was related to the exposure to the product, or upon the date on which by the exercise of reasonable diligence the claimant should have known that the bodily injury was related to the exposure to the product, whichever date occurs first. The action based on the product liability claim shall be commenced within two years after the cause of action accrues and shall not be commenced more than two years after the cause of action accrues.
(D) This section does not create a new cause of action or substantive legal right against any person involving a product liability claim.
(E) As used in this section:
(1) "Agent orange," "causative agent," and "veteran" have the same meanings as in section 5903.21 of the Revised Code.
(2) "Ethical drug," "ethical medical device," "manufacturer," "product," "product liability claim," and "supplier" have the same meanings as in section 2307.71 of the Revised Code.
(3) "Harm" means injury, death, or loss to person or property.
(F) This section shall be considered to be purely remedial in operation and shall be applied in a remedial manner in any civil action commenced on or after the effective date of this amendment, in which this section is relevant, regardless of when the cause of action accrued and notwithstanding any other section of the Revised Code or prior rule of law of this state, but shall not be construed to apply to any civil action pending prior to the effective date of this amendment.
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) 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. (2) If the alleged basis of a medical claim, dental claim,
optometric claim, or chiropractic claim is the occurrence of an
act or omission that involves a foreign object that is left in the
body of the person making the claim, the person may commence an
action upon the claim not later than one year after the person
discovered the foreign object or not later than one year after the
person, with reasonable care and diligence, should have discovered
the foreign object. (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
three-year period
described in division (D)(1) of this
section or
within the one-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 state 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 who holds a certificate of authority issued by the
board of nursing under section 4723.41 Chapter 4723. 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. 2305.131. (A)(1) Notwithstanding an otherwise applicable period of limitations specified in this chapter or in section 2125.02 of the Revised Code and except as otherwise provided in divisions (A)(2), (A)(3), (C), and (D) of this section, no cause of action to recover damages for bodily injury, an injury to real or personal property, or wrongful death that arises out of a defective and unsafe condition of an improvement to real property and no cause of action for contribution or indemnity for damages sustained as a result of bodily injury, an injury to real or personal property, or wrongful death that arises out of a defective and unsafe condition of an improvement to real property shall accrue against a person who performed services for the improvement to real property or a person who furnished the design, planning, supervision of construction, or construction of the improvement to real property later than ten years from the date of substantial completion of such improvement.
(2) Notwithstanding an otherwise applicable period of limitations specified in this chapter or in section 2125.02 of the Revised Code, a claimant who discovers a defective and unsafe condition of an improvement to real property during the ten-year period specified in division (A)(1) of this section but less than two years prior to the expiration of that period may commence a civil action to recover damages as described in that division within two years from the date of the discovery of that defective and unsafe condition.
(3) Notwithstanding an otherwise applicable period of limitations specified in this chapter or in section 2125.02 of the Revised Code, if a cause of action that arises out of a defective and unsafe condition of an improvement to real property accrues during the ten-year period specified in division (A)(1) of this section and the plaintiff cannot commence an action during that period due to a disability described in section 2305.16 of the Revised Code, the plaintiff may commence a civil action to recover damages as described in that division within two years from the removal of that disability.
(B) Division (A) of this section does not apply to a civil action commenced against a person who is an owner of, tenant of, landlord of, or other person in possession and control of an improvement to real property and who is in actual possession and control of the improvement to real property at the time that the defective and unsafe condition of the improvement to real property constitutes the proximate cause of the bodily injury, injury to real or personal property, or wrongful death that is the subject matter of the civil action.
(C) Division (A)(1) of this section is not available as an affirmative defense to a defendant in a civil action described in that division if the defendant engages in fraud in regard to furnishing the design, planning, supervision of construction, or construction of an improvement to real property or in regard to any relevant fact or other information that pertains to the act or omission constituting the alleged basis of the bodily injury, injury to real or personal property, or wrongful death or to the defective and unsafe condition of the improvement to real property.
(D) Division (A)(1) of this section does not prohibit the commencement of a civil action for damages against a person who has expressly warranted or guaranteed an improvement to real property for a period longer than the period described in division (A)(1) of this section and whose warranty or guarantee has not expired as of the time of the alleged bodily injury, injury to real or personal property, or wrongful death in accordance with the terms of that warranty or guarantee.
(E) This section does not create a new cause of action or substantive legal right against any person resulting from the design, planning, supervision of construction, or construction of an improvement to real property.
(F) This section shall be considered to be purely remedial in operation and shall be applied in a remedial manner in any civil action commenced on or after the effective date of this section, in which this section is relevant, regardless of when the cause of action accrued and notwithstanding any other section of the Revised Code or prior rule of law of this state, but shall not be construed to apply to any civil action pending prior to the effective date of this section. (G) As used in this section, "substantial completion" means the date the improvement to real property is first used by the owner or tenant of the real property or when the real property is first available for use after having the improvement completed in accordance with the contract or agreement covering the improvement, including any agreed changes to the contract or agreement, whichever occurs first.
Sec. 2305.234. (A) As used in this section: (1)
"Chiropractic claim,"
"medical claim," and
"optometric
claim"
have the same meanings as in section
2305.113 of
the Revised
Code. (2)
"Dental claim" has the same meaning as in section
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 facility or location" means a hospital, clinic, ambulatory surgical facility, office of a health care professional or associated group of health care professionals, training institution for health care professionals, or any other place where medical, dental, or other health-related diagnosis, care, or treatment is provided to a person. (5) "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 and
licensed practical nurses licensed
under Chapter
4723. of the
Revised Code and individuals who hold a certificate of authority issued under that chapter that authorizes the practice of nursing as a certified registered nurse anesthetist, clinical nurse specialist, certified nurse-midwife, or certified nurse practitioner; (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, physical therapist assistants, occupational therapists, and occupational therapy assistants 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; (l) Respiratory care professionals licensed under Chapter 4761. of the Revised Code; (m) Speech-language pathologists and audiologists licensed under Chapter 4753. of the Revised Code. (6)
"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. (7)
"Indigent and uninsured person" means a person who meets
all of the
following requirements: (a) The person's income is not greater than two hundred
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 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. (8) "Nonprofit health care referral organization" means an entity that is not operated for profit and refers patients to, or arranges for the provision of, health-related diagnosis, care, or treatment by a health care professional or health care worker. (9)
"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. "Operation" does not include routine dental restorative procedures, the scaling of teeth, or extractions of teeth that are not impacted. (10)
"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. (11)
"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
health care facility or location, any nonprofit health care referral organization, or any
other person or government entity. (12) "Community control sanction" has the same meaning as in section 2929.01 of the Revised Code. (13) "Deep sedation" means a drug-induced depression of consciousness during which a patient cannot be easily aroused but responds purposefully following repeated or painful stimulation, a patient's ability to independently maintain ventilatory function may be impaired, a patient may require assistance in maintaining a patent airway and spontaneous ventilation may be inadequate, and cardiovascular function is usually maintained.
(14) "General anesthesia" means a drug-induced loss of consciousness during which a patient is not arousable, even by painful stimulation, the ability to independently maintain ventilatory function is often impaired, a patient often requires assistance in maintaining a patent airway, positive pressure ventilation may be required because of depressed spontaneous ventilation or drug-induced depression of neuromuscular function, and cardiovascular function may be impaired. (B)(1) Subject to divisions (F) and (G)(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 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, including notifying the person that, by giving informed consent to the provision of the diagnosis, care, or treatment, the person cannot hold the health care professional liable for damages in a tort or other civil action, including an action on a medical, dental, chiropractic, optometric, or other health-related claim, unless the action or omission of the health care professional constitutes willful or wanton misconduct; (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. A written waiver under division (B)(2)(c) of this section shall state clearly and in conspicuous type that the person or other individual who signs the waiver is signing it with full knowledge that, by giving informed consent to the provision of the diagnosis, care, or treatment, the person cannot bring a tort or other civil action, including an action on a medical, dental, chiropractic, optometric, or other health-related claim, against the health care professional unless the action or omission of the health care professional constitutes willful or wanton misconduct. (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 (F) and (G)(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 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 (F) and (G)(3) of this section, a nonprofit health care referral organization 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 nonprofit health care referral organization in referring indigent and uninsured persons to, or arranging for the provision of, medical, dental, or other health-related diagnosis, care, or treatment by a health care professional described in division (B)(1) of this section or a health care worker described in division (C) of this section, unless the action or omission constitutes willful or wanton misconduct. (E) Subject to divisions (F) and (G)(3) of this section and
to the extent that the registration requirements of section 3701.071
of the Revised Code apply, a
health care facility or location associated
with a health care professional
described in division (B)(1) of this section, a health care
worker described in division (C) of this section, or a nonprofit health care referral organization described in division (D) 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 or nonprofit health care referral organization relative to the medical,
dental,
or other health-related diagnosis, care, or treatment provided to an
indigent
and uninsured person on behalf of or at the health care facility or location, unless the action or omission
constitutes willful or
wanton misconduct. (F)(1) Except as provided in division (F)(2) of this
section, the immunities provided by divisions
(B), (C), (D), and (E) of
this section are not
available to a health care professional, health care worker, nonprofit health care referral organization, or health care facility or location if, at the time of an alleged
injury, death, or loss to person or property, the
health care professionals or health care workers 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
(B) of section 2951.02 of the
Revised
Code or imposed by a court as a community control
sanction; (b) Performance of an operation; to which any one of the following applies:
(i) The operation requires the administration of deep sedation or general anesthesia.
(ii) The operation is a procedure that is not typically performed in an office.
(iii) The individual involved is a health care professional, and the operation is beyond the scope of practice or the education, training, and competence, as applicable, of the health care professional. (c) Delivery of a baby or any other purposeful termination of a human pregnancy. (2) Division (F)(1) of this section does not apply when a health care professional or health care worker provides medical, dental, or other health-related diagnosis, care, or
treatment that is
necessary to preserve the life of a person in a
medical emergency. (G)(1) This section does not create a new cause
of action or
substantive legal right against a health care professional,
health
care worker, nonprofit health care referral organization, or health care facility or location. (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
a health care professional, health care worker, nonprofit health care referral organization, or
health care facility or location may be entitled in
connection with the
provision of emergency or other medical, dental, or other health-related diagnosis,
care, or
treatment. (3) This section does not grant an immunity from tort
or
other civil liability to a health care professional, health care worker, nonprofit health care referral organization, or
health
care facility or location 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, health care worker, or nonprofit health care referral organization 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 health care facility or location 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. 2305.25. As used in this section and sections 2305.251
to 2305.253 of the
Revised Code: (A)(1) "Health care entity" means an entity,
whether acting
on its own behalf or
on behalf of or in
affiliation
with other
health care entities,
that conducts as part
of its
regular
business activities
professional credentialing or
quality review
activities
involving
the competence of, professional
conduct of,
or
quality of care
provided by health care providers, including
both
individuals who
provide health care and
entities that provide
health care.
(2) "Health care entity" includes any entity described in
division (A)(1) of this section, regardless of whether it is a
government entity; for-profit or nonprofit corporation; limited
liability company; partnership; professional corporation; state or
local society composed of physicians, dentists, optometrists,
psychologists, or pharmacists; or other health care organization. (B) "Health insuring corporation" means an entity that holds
a certificate of authority under Chapter 1751. of the Revised
Code. "Health insuring
corporation" includes wholly owned
subsidiaries of a health
insuring corporation. (C) "Hospital" means either of the following:
(1) An institution that has been registered or licensed by
the department of health as a hospital; (2) An entity, other than an insurance company authorized to
do business in this state, that owns, controls, or is affiliated
with an institution that has been registered or licensed by the
department of health as a hospital. (D) "Incident report or risk management report" means a
report of an incident involving injury or potential injury to a
patient as a result of patient care provided by health care
providers, including both individuals who provide health care and
entities that provide health care, that
is prepared by or for the
use of a peer review committee of a health care entity and is
within the scope of
the functions of that committee. (E)(1) "Peer review committee" means a utilization review
committee, quality assessment committee, performance improvement
committee, tissue committee, credentialing committee, or other
committee that does either of the following: (a) Conducts professional credentialing or quality
review
activities involving the competence of, professional conduct of,
or
quality of care provided by health care providers, including
both
individuals who provide health care
and entities that provide
health care; (b) Conducts any other attendant hearing process initiated
as a result of a peer review committee's recommendations or
actions. (2) "Peer review committee" includes all of
the following: (a) A peer review committee of a hospital or long-term care
facility or a peer review committee of a nonprofit health
care
corporation that is a member of the hospital or long-term care
facility or of which the
hospital
or facility is a member; (b) A peer review committee of a community mental health
center; (c) A board or committee of a hospital, a long-term care
facility, or other
health care entity when reviewing professional
qualifications or activities of health care providers, including
both individuals who provide health care and entities that provide
health care; (d) A peer review committee, professional standards review
committee, or arbitration committee of a state or local society
composed of members who are in active practice as physicians,
dentists, optometrists, psychologists, or
pharmacists; (e) A peer review committee of a health insuring corporation
that has at least a two-thirds majority of member physicians in
active practice and that conducts professional credentialing and
quality review activities involving the competence or professional
conduct of health care providers that adversely affects or could
adversely affect the health or welfare of any patient; (f) A peer review committee of a
health insuring corporation
that has at least a two-thirds
majority of member physicians in
active
practice and that conducts
professional credentialing and
quality
review activities involving
the competence or professional
conduct
of a health care facility
that has contracted with the
health
insuring corporation to
provide health care
services to
enrollees,
which conduct adversely
affects, or could
adversely
affect, the
health or welfare of any
patient; (g) A peer review committee of a sickness and accident
insurer that has at least a two-thirds
majority of physicians in
active practice and that conducts
professional credentialing and
quality review activities involving
the competence or professional
conduct of health care providers
that adversely affects or could
adversely affect the health or
welfare
of any patient; (h) A peer review committee of a sickness and accident
insurer that has at least a two-thirds
majority of physicians in
active practice and that conducts
professional credentialing and
quality review activities involving
the competence or professional
conduct of a health care facility
that has contracted with the
insurer to provide health care
services to insureds, which conduct
adversely affects, or could
adversely affect, the health or
welfare of any patient; (i) A peer review committee of any insurer authorized under
Title XXXIX of the Revised Code to do the business of medical
professional liability insurance in this state that conducts
professional quality review activities involving the competence or
professional conduct of health care providers that adversely
affects or could affect the health or welfare of any patient;
(j) A peer review committee of the bureau of workers' compensation responsible for reviewing the professional qualifications and the performance of providers conducting medical examinations or file reviews for the bureau;
(k) Any other peer review committee of a health care entity. (F) "Physician" means an individual authorized to practice
medicine and surgery, osteopathic medicine and surgery, or
podiatric medicine and surgery. (G) "Sickness and accident insurer" means an entity
authorized under Title XXXIX of the Revised Code to do the
business of sickness and accident insurance in this state. (H) "Tort action" means a civil action for damages for
injury, death, or loss to a patient of a health care entity. "Tort
action" includes a product liability claim, as defined in section 2307.71 of the Revised Code, and an asbestos claim, as defined in section 2307.91 of the Revised Code, but does not include a
civil action for a breach of contract or another agreement between
persons.
Sec. 2305.36. (A) As used in this section:
(1) "Cumulative consumption" means, with respect to a health condition, any health condition, including, but not limited to, increased cholesterol, heart disease, or high blood pressure, that is caused by successive consumption of a qualified product.
(2) "Person engaged in the business" means a person who manufactures, markets, distributes, advertises, or sells a qualified product in the regular course of the person's trade or business.
(3) "Manufacturer" and "supplier" have the same meanings as in section 2307.71 of the Revised Code.
(4) "Qualified product" means all of the following: (a) Articles used for food or drink for a human being or other animal; (c) Articles used for components of any article listed in division (A)(4)(a) or (b) of this section.
(5) "Seller" means, with respect to a qualified product, a person lawfully engaged in the business of marketing, distributing, advertising, or selling the product.
(6) "Trade association" means any association or business organization that is not operated for profit and in which two or more members of the trade association are manufacturers, marketers, distributors, advertisers, or sellers of a qualified product.
(B) Except as provided in division (D) of this section, no manufacturer, seller, or supplier of a qualified product and no trade association is liable for injury, death, or loss to person or property for damages, is subject to an action for declaratory judgment, injunctive relief, or declaratory relief, or is responsible for restitution, damages, or other relief arising out of, resulting from, or related to cumulative consumption, weight gain, obesity, or any health condition that is related to cumulative consumption, weight gain, or obesity.
(C) A party that prevails on a motion to dismiss an action under division (B) of this section may recover reasonable attorney's fees and costs that the party incurred in connection with the motion to dismiss. (D) The immunity from liability provided in division (B) of this section does not apply to any of the following if it, alone or in combination with any of the following, was the predominate proximate cause of the claim of injury, death, or loss resulting from cumulative consumption, weight gain, obesity, or any health condition that is related to cumulative consumption, weight gain, or obesity: (1) The misbranding of the qualified product involved;
(2) Any knowing and willful violation of state or federal law that applies to the qualified product involved;
(3) Any breach of express contract or breach of express warranty in connection with the purchase of the qualified product involved. (E) Nothing in this section shall be construed as creating any new cause of action for a claim of injury, death, or loss resulting from a person's cumulative consumption, weight gain, obesity, or any health condition that is related to cumulative consumption, weight gain, or obesity.
Sec. 2307.011. As used in Chapters 2307. and 2315. of the
Revised Code: (A) "Conduct" means actions or omissions. (B) "Contributory fault" means contributory negligence,
other contributory tortious conduct, comparative negligence, or, except as provided with respect to product liability claims in section 2307.711 of the Revised Code,
express or implied assumption of the risk. (C) "Economic loss" means any of the following types of
pecuniary harm: (1) 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 tort action, including wages, salaries, or other
compensation lost as of the date of a judgment and future expected
lost earnings; (2) All expenditures for medical care or treatment,
rehabilitation services, or other care, treatment, services,
products, or accommodations incurred as a result of an injury,
death, or loss to person that is a subject of a tort action,
including expenditures for those purposes that were incurred as of
the date of a judgment and expenditures for those purposes that,
in the determination of the trier of fact, will be incurred in the
future because of the injury, whether paid by the injured person
or by another person on behalf of the injured person; (3) All expenditures of a person whose property was injured
or destroyed or of another person on behalf of the person whose
property was injured or destroyed in order to repair or replace
the property; (4) Any other expenditures incurred as a result of an
injury, death, or loss to person or property that is a subject of
a tort action, except expenditures of the injured person, the
person whose property was injured or destroyed, or another person
on behalf of the injured person or the person whose property was
injured or destroyed in relation to the actual preparation or
presentation of the claim involved. (D) "Intentional tort claim" means a claim alleging that a
tortfeasor intentionally caused or intentionally contributed to
the injury or loss to person or property or the wrongful death or
that a tortfeasor knew or believed that the injury or loss to
person or property or the wrongful death was substantially certain
to result from the tortfeasor's conduct. As used in sections
2307.22, 2307.711, and 2315.32, and 2315.42 of the Revised Code,
"intentional tort claim" does not include an intentional tort
claim alleged by an employee or the employee's legal
representative against the employee's employer and that arises
from the tortfeasor's conduct that occurs on premises owned,
leased, or supervised by the employer. (E) "Negligence claim" means a civil action for damages for
injury, death, or loss to person or property to the extent that
the damages are sought or recovered based on allegation or proof
of negligence. (F) "Noneconomic loss" means nonpecuniary harm that results
from an injury, death, or loss 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.
(G)(F) "Person" has the same meaning as in division (C) of
section 1.59 of the Revised Code and additionally includes a
political subdivision and the state.
(H)(G) "Persons from whom the plaintiff does not seek recovery
in this action" includes, but is not limited to, the following:
(1) Persons who have entered into a settlement agreement
with the plaintiff; (2) Persons whom the plaintiff has dismissed from the tort
action without prejudice; (3) Persons whom the plaintiff has dismissed from the tort
action with prejudice; (4) Persons who are not a party to the tort action
whether
or not that person was or could have been a party to the
tort
action if the name of the person has been disclosed prior to
trial. (I)(H) "Plaintiff" includes the person for whom the plaintiff
is legal representative.
(J)(I) "Political subdivision" and "state" have the same
meanings as in section 2744.01 of the Revised Code.
(K)(J) "Tort action" means a civil action for damages for
injury, death, or loss to person or property. "Tort action" includes a product liability claim, as defined in section 2307.71 of the Revised Code, and an asbestos claim, as defined in section 2307.91 of the Revised Code, but does not include a civil
action for damages for a breach of contract or
another agreement
between persons.
(L)(K) "Trier of fact" means the jury or, in a nonjury
action,
the court.
Sec. 2307.23. (A) In determining the percentage of tortious
conduct attributable to a party in a tort action under
section
2307.22, or sections 2315.32 to 2315.36, or sections 2315.41 to 2315.46 of the
Revised Code, the
court in a nonjury action shall
make findings of
fact, and the
jury in a jury action shall return
a general verdict
accompanied
by answers to interrogatories, that
shall specify all
of the
following:
(1) The percentage of tortious conduct that proximately
caused the injury
or loss to person or property or the wrongful
death that is attributable to the plaintiff and
to each party to
the tort action from whom the plaintiff seeks
recovery in this
action;
(2) The percentage of tortious conduct
that proximately
caused the injury or loss to person or property
or the wrongful
death that
is attributable to each person from whom the plaintiff
does not
seek recovery in this action.
(B) The sum of the percentages of tortious conduct as
determined pursuant to division (A) of this section shall equal
one hundred per cent.
(C) For purposes of division (A)(2) of this section, it is
an affirmative defense for each party to the tort action from whom
the plaintiff seeks recovery in this action that a specific
percentage of the tortious conduct that proximately caused the
injury or loss to person or property or the wrongful death is
attributable to one or more persons from whom the plaintiff does
not seek recovery in this action. Any party to the tort action
from whom the plaintiff seeks recovery in this action may raise an
affirmative defense under this division at any time before the
trial of the action.
Sec. 2307.29. No provision of sections 2307.25 to 2307.28
of the Revised Code applies to a negligence or other tort claim to
the extent that sections 2307.22 to 2307.24, or
sections 2315.32 to
2315.36, or sections 2315.41 to 2315.46 of the Revised Code make
a
party
against whom a judgment
is entered liable to the plaintiff
only
for the proportionate
share of that party as described in
those
sections.
Sec. 2307.60. (A)
Anyone injured in person or property by
a
criminal act has, and
may recover full damages in, a civil
action
unless specifically excepted by
law, may recover the costs
of
maintaining the civil action and attorney's fees
if authorized
by
any provision of the Rules of Civil Procedure or another
section
of the Revised Code or under the common law of this state,
and may
recover
punitive or exemplary damages if authorized by
section
2315.21 or another
section of the Revised Code.
No record
of a
conviction, unless
obtained by confession in open court,
shall
be
used as evidence in a civil
action brought pursuant to
division
(A) of
this
section. (B)(1) As used in division (B) of this section, "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. "Tort
action" includes, but is not limited to, a
product liability
claim, as defined in section 2307.71 of the Revised Code, and an asbestos claim, as defined in section 2307.91 of the Revised Code, an action for wrongful death under
Chapter 2125. of the
Revised Code, and an action based on
derivative claims for relief. (2) Recovery on a claim for relief in a tort action is
barred
to any person or the person's legal representative if the
person
has been convicted of or has pleaded guilty to a felony, or
to a
misdemeanor that is an offense of violence, arising out of
criminal conduct that was a proximate cause of the injury or loss
for which relief is claimed in the action. (3) Division (B) of this section does not apply to civil
claims based upon alleged intentionally tortious conduct, alleged
violations of the United States Constitution, or alleged
violations of statutes of the United States pertaining to civil
rights.
Sec. 2307.71. (A) As used in sections 2307.71 to 2307.80
of
the
Revised Code: (A)(1)
"Claimant" means either of the following:
(1)(a) A person who asserts a product liability claim or on
whose behalf such a claim is asserted;
(2)(b) If a product liability claim is asserted on behalf of
the surviving spouse, children, parents, or other next of kin of
a
decedent or on behalf of the estate of a decedent, whether as a
claim in a wrongful death action
under
Chapter 2125. of the
Revised Code or as a survivorship claim,
whichever of the
following is appropriate:
(a)(i) The decedent, if the reference is to the person who
allegedly sustained harm or economic loss for which, or in
connection with which, compensatory damages or punitive or
exemplary damages are sought to be recovered;
(b)(ii) The personal representative of the decedent or the
estate of the decedent, if the reference is to the person who is
asserting or has asserted the product liability claim.
(B)(2)
"Economic loss" means direct, incidental, or
consequential pecuniary loss, including, but not limited to,
damage to the product in question, and nonphysical
damage
to
property other than that product. Harm is not
"economic loss."
(C)(3)
"Environment" means navigable waters, surface water,
ground water, drinking water supplies, land surface, subsurface
strata, and air.
(D)(4)
"Ethical drug" means a prescription drug that is
prescribed or dispensed by a physician or any other person who is
legally authorized to prescribe or dispense a prescription drug.
(E)(5)
"Ethical medical device" means a medical device that
is
prescribed, dispensed, or implanted by a physician or any
other
person who is legally authorized to prescribe, dispense, or
implant a medical device and that is regulated under the
"Federal
Food, Drug, and Cosmetic Act," 52 Stat. 1040, 21 U.S.C. 301-392,
as amended.
(F)(6)
"Foreseeable risk" means a risk of harm that satisfies
both of the following:
(1)(a) It is associated with an intended or reasonably
foreseeable use, modification, or alteration of a product in
question;.
(2)(b) It is a risk that the manufacturer in question should
recognize while exercising both of the following:
(a)(i) The attention, perception, memory, knowledge, and
intelligence that a reasonable manufacturer should possess;
(b)(ii) Any superior attention, perception, memory, knowledge,
or intelligence that the manufacturer in question possesses.
(G)(7)
"Harm" means death, physical injury to person, serious
emotional distress, or physical damage to property other than the
product in question. Economic loss is not
"harm."
(H)(8)
"Hazardous or toxic substances" include, but are not
limited to, hazardous waste as defined in section 3734.01 of the
Revised Code, hazardous waste as specified in the rules of the
director of environmental protection pursuant to division (A) of
section 3734.12 of the Revised Code, hazardous substances as
defined in section 3716.01 of the Revised Code, and hazardous
substances, pollutants, and contaminants as defined in or by
regulations adopted pursuant to the
"Comprehensive Environmental
Response, Compensation, and Liability Act of 1980," 94 Stat.
2767,
42 U.S.C. 9601, as amended.
(I)(9)
"Manufacturer" means a person engaged in a business to
design, formulate, produce, create, make, construct, assemble, or
rebuild a product or a component of a product.
(J)(10)
"Person" has the same meaning as in division (C) of
section 1.59 of the Revised Code and also includes governmental
entities.
(K)(11)
"Physician" means a person who is licensed to practice
medicine and surgery or osteopathic medicine and surgery by the
state medical board.
(L)(1)(12)(a)
"Product" means, subject to division (L)(2)(A)(12)(b) of this
section, any object, substance, mixture, or raw material that
constitutes tangible personal property and that satisfies all of
the following:
(a)(i) It is capable of delivery itself, or as an assembled
whole in a mixed or combined state, or as a component or
ingredient;.
(b)(ii) It is produced, manufactured, or supplied for
introduction into trade or commerce;.
(c)(iii) It is intended for sale or lease to persons for
commercial or personal use.
(2)(b)
"Product" does not include human tissue, blood, or
organs.
(M)(13)
"Product liability claim" means a claim that is
asserted
in a civil action pursuant to sections 2307.71 to 2307.80 of the Revised Code and that seeks to recover compensatory
damages
from a manufacturer or supplier for death, physical
injury to
person, emotional distress, or physical damage to
property other
than the product in question, that
allegedly arose
from
any of the
following:
(1)(a) The design, formulation, production, construction,
creation, assembly, rebuilding, testing, or marketing of that
product;
(2)(b) Any warning or instruction, or lack of warning or
instruction, associated with that product;
(3)(c) Any failure of that product to conform to any relevant
representation or warranty.
(N)(14)
"Representation" means an express representation of a
material fact concerning the character, quality, or safety of a
product.
(O)(1)(15)(a)
"Supplier" means, subject to division
(O)(2)(A)(15)(b) of
this
section, either of the following:
(a)(i) A person that, in the course of a business conducted
for
the purpose, sells, distributes, leases, prepares, blends,
packages, labels, or otherwise participates in the placing of a
product in the stream of commerce;
(b)(ii) A person that, in the course of a business conducted
for
the purpose, installs, repairs, or maintains any aspect of a
product that allegedly causes harm.
(2)(b)
"Supplier" does not include any of the following:
(b)(ii) A seller of real property;
(c)(iii) A provider of professional services who, incidental to
a
professional transaction the essence of which is the furnishing
of
judgment, skill, or services, sells or uses a product;
(d)(iv) Any person who acts only in a financial capacity with
respect to the sale of a product, or who leases a product under a
lease arrangement in which the selection, possession,
maintenance,
and operation of the product are controlled by a
person other than
the lessor.
(P)(16)
"Unavoidably unsafe" means that, in the state of
technical, scientific, and medical knowledge at the time a
product
in question left the control of its manufacturer, an
aspect of
that product was incapable of being made safe.
(B) Sections 2307.71 to 2307.80 of the Revised Code are intended to abrogate all common law product liability causes of action.
Sec. 2307.711. (A) Subject to divisions (B)(1), (2), and (3) of this section, sections 2315.32 to 2315.36 of the Revised Code apply to a product liability claim that is asserted pursuant to sections 2307.71 to 2307.80 of the Revised Code.
(B)(1) Express or implied assumption of the risk may be asserted as an affirmative defense to a product liability claim under sections 2307.71 to 2307.80 of the Revised Code, except that express or implied assumption of the risk may not be asserted as an affirmative defense to an intentional tort claim.
(2) Subject to division (B)(3) of this section, if express or implied assumption of the risk is asserted as an affirmative defense to a product liability claim under sections 2307.71 to 2307.80 of the Revised Code and if it is determined that the claimant expressly or impliedly assumed a risk and that the express or implied assumption of the risk was a direct and proximate cause of harm for which the claimant seeks to recover damages, the express or implied assumption of the risk is a complete bar to the recovery of those damages.
(3) If implied assumption of the risk is asserted as an affirmative defense to a product liability claim against a supplier under division (A)(1) of section 2307.78 of the Revised Code, sections 2315.32 to 2315.36 of the Revised Code are applicable to that affirmative defense and shall be used to determine whether the claimant is entitled to recover compensatory damages based on that claim and the amount of any recoverable compensatory damages. Sec. 2307.75. (A) Subject to divisions (D), (E), and (F)
of
this section, a product is defective in design or formulation
if
either of the following applies: (1) When, at the time it left the control of its
manufacturer, the
foreseeable risks associated with its design or
formulation as
determined pursuant to division (B) of this section
exceeded the
benefits associated with that design or formulation
as determined
pursuant to division (C) of this section;
(2) It is more dangerous than an ordinary consumer would
expect when used in an intended or reasonably foreseeable manner.
(B) The foreseeable risks associated with the design or
formulation of a product shall be determined by considering
factors including, but not limited to, the following: (1) The nature and magnitude of the risks of harm
associated
with that design or formulation in light of the
intended and
reasonably foreseeable uses,
modifications, or
alterations of the
product; (2) The likely awareness of product users, whether based
on
warnings, general knowledge, or otherwise, of those risks of
harm; (3) The likelihood that that design or formulation would
cause harm in light of the intended and reasonably foreseeable
uses, modifications, or alterations of the product; (4) The extent to which that design or formulation
conformed
to any applicable public or private product standard
that was in
effect when the product left the control of its
manufacturer; (5) The extent to which that design or formulation is more dangerous than a resonably prudent consumer would expect when used in an intended or reasonably foreseeable manner. (C) The benefits associated with the design or formulation
of a product shall be determined by considering factors
including,
but not limited to, the following: (1) The intended or actual utility of the product,
including
any performance or safety advantages associated with
that design
or formulation; (2) The technical and economic feasibility, when the
product
left the control of its manufacturer, of using an
alternative
design or formulation; (3) The nature and magnitude of any foreseeable risks
associated with such an alternative design or formulation. (D) An ethical drug or ethical medical device is not
defective in design or formulation because some aspect of it is
unavoidably unsafe, if the manufacturer of the ethical drug or
ethical medical device provides adequate warning and instruction
under section 2307.76 of the Revised Code concerning that
unavoidably unsafe aspect. (E) A product is not defective in design or formulation if
the harm for which the claimant seeks to recover compensatory
damages was caused by an inherent characteristic of the product
which is a generic aspect of the product that cannot be
eliminated
without substantially compromising the product's
usefulness or
desirability and which is recognized by the
ordinary person with
the ordinary knowledge common to the
community. (F) A product is not defective in design or formulation
if,
at the time the product left the control of its manufacturer,
a
practical and technically feasible alternative design or
formulation was not available that would have prevented the harm
for which the claimant seeks to recover compensatory damages
without substantially impairing the usefulness or intended
purpose
of the product, unless the manufacturer acted
unreasonably in
introducing the product into trade or commerce.
Sec. 2307.80. (A) Subject to
division divisions (C) and (D) of this
section,
punitive or
exemplary damages shall not be awarded
against a
manufacturer
or supplier in question in connection with
a product
liability
claim unless the claimant
establishes, by
clear and
convincing evidence, that harm for which
the claimant is
entitled
to recover compensatory damages in accordance with
section
2307.73
or 2307.78 of the
Revised Code was the result of
misconduct of the
manufacturer or
supplier in question that
manifested a flagrant
disregard of the
safety of persons who
might
be harmed by the
product in question. The fact
by itself
that a
product is
defective does not
establish a flagrant
disregard of
the safety of
persons who might
be harmed by that
product. (B) Whether the trier of fact is a jury or the court, if
the
trier of fact determines that a manufacturer or supplier
in
question is liable for punitive or exemplary damages in
connection
with a product liability claim,
the amount of those
damages shall
be determined by the court. In
determining the
amount of punitive
or exemplary damages, the court
shall
consider
factors including,
but not limited to, the following: (1) The likelihood that serious harm would arise from the
misconduct of the manufacturer or supplier in question; (2) The degree of the awareness of the manufacturer or
supplier in question of that likelihood; (3) The profitability of the misconduct to the
manufacturer
or supplier in question; (4) The duration of the misconduct and any concealment of
it
by the manufacturer or supplier in question; (5) The attitude and conduct of the manufacturer or
supplier
in question upon the discovery of the misconduct and
whether the
misconduct has terminated; (6) The financial condition of the manufacturer or
supplier
in question; (7) The total effect of other punishment imposed or likely
to be imposed upon the manufacturer or supplier in question as a
result of the misconduct, including awards of punitive or
exemplary damages to persons similarly situated to the claimant
and the severity of criminal penalties to which the manufacturer
or supplier in question has been or is likely to be subjected. (C)
If (1) Except as provided in division (C)(2) of this section, if a claimant alleges in a product liability claim
that a
drug or device
caused harm to
the claimant, the manufacturer
of the
drug or device
shall not be liable for punitive or
exemplary damages in
connection with that product liability claim
if the drug or device that
allegedly caused the harm satisfies either of the following: (a) It was manufactured and labeled in
relevant
and material
respects in accordance with the terms of an
approval
or license
issued by the federal food and drug
administration
under the
"Federal Food, Drug, and Cosmetic Act,"
52 Stat. 1040
(1938), 21
U.S.C. 301-392, as amended, or the
"Public
Health
Service Act," 58
Stat. 682
(1944), 42 U.S.C. 201-300cc-15, as
amended, unless it is
established. (b) It was an over-the-counter drug marketed pursuant to federal regulations, was generally recognized as safe and effective and as not being misbranded pursuant to the applicable federal regulations, and satisfied in relevant and material respects each of the conditions contained in the applicable regulations and each of the conditions contained in an applicable monograph. (2) Division (C)(1) of this section does not apply if the claimant establishes, by a preponderance of the
evidence, that the
manufacturer fraudulently and in violation of
applicable
regulations of the food and drug administration
withheld from the
food and drug administration information known
to be material and
relevant to the harm that the claimant
allegedly suffered or
misrepresented to the food and drug
administration information of
that type. For (3) For purposes of this
division,
"drug divisions (C) and (D) of this section: (a) "Drug" has the same meaning given
to that term as in
the
"Federal Food, Drug, and Cosmetic
Act," 52
Stat.
1040,
1041
(1938), 21 U.S.C.
321(g)(1), as
amended.
(b) "Device" has the same meaning as in the "Federal Food, Drug, and Cosmetic Act," 52 Stat. 1040, 1041 (1938), 21 U.S.C. 321(h), as amended.
(D)(1) If a claimant alleges in a product liability claim that a product other than a drug or device caused harm to the claimant, the manufacturer or supplier of the product shall not be liable for punitive or exemplary damages in connection with the claim if the manufacturer or supplier fully complied with all applicable government safety and performance standards, whether or not designated as such by the government, relative to the product's manufacture or construction, the product's design or formulation, adequate warnings or instructions, and representations when the product left the control of the manufacturer or supplier, and the claimant's injury results from an alleged defect of a product's manufacture or construction, the product's design or formulation, adequate warnings or instructions, and representations for which there is an applicable government safety or performance standard. (2) Division (D)(1) of this section does not apply if the claimant establishes, by a preponderance of the evidence, that the manufacturer or supplier of the product other than a drug or device fraudulently and in violation of applicable government safety and performance standards, whether or not designated as such by the government, withheld from an applicable government agency information known to be material and relevant to the harm that the claimant allegedly suffered or misrepresented to an applicable government agency information of that type.
(E) The bifurcated trial provisions of division (B) of section 2315.21 of the Revised Code, the ceiling on recoverable punitive or exemplary damages specified in division (D)(1) of that section, and the provisions of division (D)(3) of that section apply to awards of punitive or exemplary damages under this section.
Sec. 2307.97. (A) As used in this section:
(1) "Asbestos" means chrysotile, amosite, crocidolite, tremolite asbestos, anthophyllite asbestos, actinolite asbestos, and any of these minerals that have been chemically treated or altered.
(2) "Asbestos claim" means any claim, wherever or whenever made, for damages, losses, indemnification, contribution, or other relief arising out of, based on, or in any way related to asbestos. "Asbestos claim" includes any of the following:
(a) A claim made by or on behalf of any person who has been exposed to asbestos, or any representative, spouse, parent, child, or other relative of that person, for injury, including mental or emotional injury, death, or loss to person, risk of disease or other injury, costs of medical monitoring or surveillance, or any other effects on the person's health that are caused by the person's exposure to asbestos;
(b) A claim for damage or loss to property that is caused by the installation, presence, or removal of asbestos.
(3) "Corporation" means a corporation for profit, including the following:
(a) A domestic corporation that is organized under the laws of this state;
(b) A foreign corporation that is organized under laws other than the laws of this state and that has had a certificate of authority to transact business in this state or has done business in this state.
(4) "Successor" means a corporation or a subsidiary of a corporation that assumes or incurs, or had assumed or incurred, successor asbestos-related liabilities or had successor asbestos-related liabilities imposed on it by court order.
(5)(a) "Successor asbestos-related liabilities" means any liabilities, whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due, if the liabilities are related in any way to asbestos claims and either of the following applies:
(i) The liabilities are assumed or incurred by a successor as a result of or in connection with an asset purchase, stock purchase, merger, consolidation, or agreement providing for an asset purchase, stock purchase, merger, or consolidation, including a plan of merger.
(ii) The liabilities were imposed by court order on a successor.
(b) "Successor asbestos-related liabilities" includes any liabilities described in division (A)(5)(a)(i) of this section that, after the effective date of the asset purchase, stock purchase, merger, or consolidation, are paid, otherwise discharged, committed to be paid, or committed to be otherwise discharged by or on behalf of the successor, or by or on behalf of a transferor, in connection with any judgment, settlement, or other discharge of those liabilities in this state or another jurisdiction.
(6) "Transferor" means a corporation or its shareholders from which successor asbestos-related liabilities are or were assumed or incurred by a successor or were imposed by court order on a successor.
(B) The limitations set forth in division (C) of this section apply to a corporation that is either of the following:
(1) A successor that became a successor prior to January 1, 1972, if either of the following applies:
(a) In the case of a successor in a stock purchase or an asset purchase, the successor paid less then fifteen million dollars for the stock or assets of the transferor.
(b) In the case of a successor in a merger or consolidation, the fair market value of the total gross assets of the transferor, at the time of the merger or consolidation, excluding any insurance of the transferor, was less than fifty million dollars.
(2) Any successor to a prior successor if the prior successor met the requirements of division (B)(1)(a) or (b) of this section, whichever is applicable.
(C)(1) Except as otherwise provided in division (C)(2) of this section, the cumulative successor asbestos-related liabilities of a corporation shall be limited to either of the following:
(a) In the case of a corporation that is a successor in a stock purchase or an asset purchase, the fair market value of the acquired stock or assets of the transferor, as determined on the effective date of the stock or asset purchase;
(b) In the case of a corporation that is a successor in a merger or consolidation, the fair market value of the total gross assets of the transferor, as determined on the effective date of the merger or consolidation.
(2)(a) If a transferor had assumed or incurred successor asbestos-related liabilities in connection with a prior purchase of assets or stock involving a prior transferor, the fair market value of the assets or stock purchased from the prior transferor, determined as of the effective date of the prior purchase of the assets or stock, shall be substituted for the limitation set forth in division (C)(1)(a) of this section for the purpose of determining the limitation of the liability of a corporation.
(b) If a transferor had assumed or incurred successor asbestos-related liabilities in connection with a merger or consolidation involving a prior transferor, the fair market value of the total gross assets of the prior transferor, determined as of the effective date of the prior merger or consolidation, shall be substituted for the limitation set forth in division (C)(1)(b) of this section for the purpose of determining the limitation of the liability of a corporation.
(3) A corporation described in division (C)(1) or (2) of this section shall have no responsibility for any successor asbestos-related liabilities in excess of the limitation of those liabilities as described in the applicable division.
(D)(1) A corporation may establish the fair market value of assets, stock, or total gross assets under division (C) of this section by means of any method that is reasonable under the circumstances, including by reference to their going-concern value, to the purchase price attributable to or paid for them in an arm's length transaction, or, in the absence of other readily available information from which fair market value can be determined, to their value recorded on a balance sheet. Assets and total gross assets shall include intangible assets. A showing by the successor of a reasonable determination of the fair market value of assets, stock, or total gross assets is prima-facie evidence of their fair market value.
(2) For purposes of establishing the fair market value of total gross assets under division (D)(1) of this section, the total gross assets include the aggregate coverage under any applicable liability insurance that was issued to the transferor the assets of which are being valued for purposes of the limitations set forth in division (C) of this section, if the insurance has been collected or is collectable to cover the successor asbestos-related liabilities involved. Those successor asbestos-related liabilities do not include any compensation for any liabilities arising from the exposure of workers to asbestos solely during the course of their employment by the transferor. Any settlement of a dispute concerning the insurance coverage described in this division that is entered into by a transferor or successor with the insurer of the transferor before the effective date of this section is determinative of the aggregate coverage of the liability insurance that is included in the determination of the transferor's total gross assets.
(3) After a successor has established a reasonable determination of the fair market value of assets, stock, or total gross assets under divisions (D)(1) and (2) of this section, a claimant that disputes that determination of the fair market value has the burden of establishing a different fair market value.
(4)(a) Subject to divisions (D)(4)(b), (c), and (d) of this section, the fair market value of assets, stock, or total gross assets at the time of the asset purchase, stock purchase, merger, or consolidation increases annually, at a rate equal to the sum of the following:
(i) The prime rate as listed in the first edition of the wall street journal published for each calendar year since the effective date of the asset purchase, stock purchase, merger, or consolidation, or, if the prime rate is not published in that edition of the wall street journal, the prime rate as reasonably determined on the first business day of the year;
(b) The rate that is determined pursuant to division (D)(4)(a) of this section shall not be compounded.
(c) The adjustment of the fair market value of assets, stock, or total gross assets shall continue in the manner described in division (D)(4)(a) of this section until the adjusted fair market value is first exceeded by the cumulative amounts of successor asbestos-related liabilities that are paid or committed to be paid by or on behalf of a successor or prior transferor, or by or on behalf of a transferor, after the time of the asset purchase, stock purchase, merger, or consolidation for which the fair market value of assets, stock, or total gross assets is determined.
(d) No adjustment of the fair market value of total gross assets as provided in division (D)(4)(a) of this section shall be applied to any liability insurance that is otherwise included in total gross assets as provided in division (D)(2) of this section.
(E)(1) The limitations set forth in division (C) of this section shall apply to the following:
(a) All asbestos claims, including asbestos claims that are pending on the effective date of this section, and all litigation involving asbestos claims, including litigation that is pending on the effective date of this section;
(b) Successors of a corporation to which this section applies.
(2) The limitations set forth in division (C) of this section do not apply to any of the following:
(a) Workers' compensation benefits that are paid by or on behalf of an employer to an employee pursuant to any provision of Chapter 4121., 4123., 4127., or 4131. of the Revised Code or comparable workers' compensation law of another jurisdiction;
(b) Any claim against a successor that does not constitute a claim for a successor asbestos-related liability;
(c) Any obligations arising under the "National Labor Relations Act," 49 Stat. 449, 29 U.S.C. 151 et seq., as amended, or under any collective bargaining agreement; (d) Any contractual rights to indemnification.
(F) The courts in this state shall apply, to the fullest extent permissible under the Constitution of the United States, this state's substantive law, including the provisions of this section, to the issue of successor asbestos-related liabilities. Sec. 2315.01. (A) When the jury is sworn, unless for
special
reasons the court otherwise directs, the trial shall
proceed in
the following order except as provided in section
2315.02 of the
Revised Code: (A)(1) The plaintiff concisely must shall state
the
plaintiff's
claim, and
briefly may state
the plaintiff's
evidence to
sustain
it.
(B)(2) The defendant must then briefly shall state
the
defendant's
defense, and
briefly may state
the defendant's
evidence in
support of it.
(C)(3) The party who would be defeated if no evidence were
offered on either side, first, must shall produce
that
party's
evidence, and the
adverse party must shall then produce
the
adverse
party's evidence.
(D)(4) The parties then shall be confined to rebutting
evidence, unless the court for good reasons, and in the
furtherance
of
justice, permits them to offer evidence in their
original
cases.
(E)(5) When the evidence is concluded, either party may
present
written instructions to the court on matters of law and
request
them to be given to the jury, which instructions shall be
given or
refused by the. The court shall give or refuse to give the written instructions to the jury before the argument to the
jury is
commenced.
(F)(6) The parties then may submit or argue the case to the
jury. The party required first to produce
that party's
evidence
shall
have the opening and closing arguments. If several
defendants,
having have separate defenses,and appear by different
counsel,
the
court
shall arrange their relative order.
(G)(7) The court, after the argument is concluded, and
before
proceeding with other business, shall charge the jury. Any
charge
shall be reduced to writing by the The court shall reduce a charge to writing if either party,
before
the argument to the jury
is commenced, requests it.
Such
charge
may be examined by the The
parties may examine that charge
before any
closing argument
is
made by any of the parties. A If a charge or
instruction, when
so
is written and given, as prescribed in this division, the court
shall not be orally
qualified, modified qualify, modify, or in
any manner explained explain the charge or instruction to the
jury
by the
court. All written
charges and instructions shall be taken
by
the jurors in their
retirement, shall be returned with their
verdict into
court, and shall
remain on file with the papers of
the case.
(B) In all tort actions, the court shall instruct the jury regarding the extent to which an award of compensatory damages or punitive or exemplary damages is or is not subject to taxation under federal or state income tax laws.
As used in this division, "tort action" means a civil action for damages for injury, death, or loss to person or property. "Tort action" includes a product liability claim, as defined in section 2307.71 of the Revised Code, and an asbestos claim, as defined in section 2307.91 of the Revised Code, but does not include a civil action for damages for breach of contract or another agreement between persons.
Division (B) of this section shall be considered to be purely remedial in operation and shall be applied in a remedial manner in any civil action commenced on or after the effective date of this amendment, in which division (B) of this section is relevant, regardless of when the cause of action accrued and notwithstanding any other section of the Revised Code or prior rule of law of this state, but shall not be construed to apply to any civil action pending prior to the effective date of this amendment.
Sec. 2315.18. (A) As used in this section and in section 2315.19 of the Revised Code:
(1) "Asbestos claim" has the same meaning as in section 2307.91 of the Revised Code.
(2) "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 or loss to person or property 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 or loss to person or property that is a subject of a tort action;
(c) Any other expenditures incurred as a result of an injury or loss to person or property that is a subject of a tort action, other than attorney's fees incurred in connection with that action.
(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 or loss to person or property 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, disfigurement, mental anguish, and any other intangible loss.
(5) "Occurrence" means all claims resulting from or arising out of any one person's bodily injury.
(6) "Product liability claim" has the same meaning as in section 2307.71 of the Revised Code.
(7) "Tort action" means a civil action for damages for injury or loss to person or property. "Tort action" includes a civil action upon a product liability claim or an asbestos claim. "Tort action" does not include a civil action upon a medical claim, dental claim, optometric claim, or chiropractic claim or a civil action for damages for a breach of contract or another agreement between persons.
(8) "Trier of fact" means the jury or, in a nonjury action, the court.
(B) In a tort action to recover damages for injury or loss to person or property, all of the following apply:
(1) There shall not be any limitation on the amount of compensatory damages that represents the economic loss of the person who is awarded the damages in the tort action.
(2) Except as otherwise provided in division (B)(3) of this section, the amount of compensatory damages that represents damages for noneconomic loss that is recoverable in a tort action under this section to recover damages for injury 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 economic loss, as determined by the trier of fact, of the plaintiff in that tort action to a maximum of three hundred fifty thousand dollars for each plaintiff in that tort action or a maximum of five hundred thousand dollars for each occurrence that is the basis of that tort action.
(3) There shall not be any limitation on the amount of compensatory damages that represents damages for noneconomic loss that is recoverable in a tort action to recover damages for injury or loss to person or property 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 self and perform life-sustaining activities.
(C) In determining an award of compensatory damages for noneconomic loss in a tort action, the trier of fact shall not consider any of the following:
(1) Evidence of a defendant's alleged wrongdoing, misconduct, or guilt;
(2) Evidence of the defendant's wealth or financial resources;
(3) All other evidence that is offered for the purpose of punishing the defendant, rather than offered for a compensatory purpose.
(D) If a trial is conducted in a tort action to recover damages for injury or loss to person or property and a plaintiff prevails in that action, 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.
(E)(1) After the trier of fact in a tort action to recover damages for injury or loss to person or property complies with division (D) 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 (D)(2) of this section, and, subject to division (F)(1) of this section, the court shall enter a judgment in favor of the plaintiff for compensatory damages for noneconomic loss. Except as provided in division (B)(3) of this section, 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 division (B)(2) of this section. Division (B) 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 tort action described in division (D) of this section, 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 (B)(2) of this section.
(F)(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 division (B)(2) of this section, and neither counsel for any party nor a witness shall inform the jury or potential jurors of that limit.
(G) With respect to a tort action to which division (B)(2) of this section applies, any excess amount of compensatory damages for noneconomic loss that is greater than the applicable amount specified in division (B)(2) of this section shall not be reallocated to any other tortfeasor beyond the amount of compensatory damages that the tortfeasor would otherwise be responsible for under the laws of this state.
(H) This section does not apply to any of the following:
(1) Tort actions 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) 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. 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.
(I) If the provisions regarding the limits on compensatory damages for noneconomic loss set forth in division (B)(2) of this section have been determined to be unconstitutional, then division (C) of this section and section 2315.19 of the Revised Code shall govern the determination of an award of compensatory damages for noneconomic loss in a tort action.
Sec. 2315.19. (A) Upon a post-judgment motion, a trial court in a tort action shall review the evidence supporting an award of compensatory damages for noneconomic loss that the defendant has challenged as excessive. That review shall include, but is not limited to, the following factors:
(1) Whether the evidence presented or the arguments of the attorneys resulted in one or more of the following events in the determination of an award of compensatory damages for noneconomic loss:
(a) It inflamed the passion or prejudice of the trier of fact.
(b) It resulted in the improper consideration of the wealth of the defendant.
(c) It resulted in the improper consideration of the misconduct of the defendant so as to punish the defendant improperly or in circumvention of the limitation on punitive or exemplary damages as provided in section 2315.21 of the Revised Code.
(2) Whether the verdict is in excess of verdicts involving comparable injuries to similarly situated plaintiffs;
(3) Whether there were any extraordinary circumstances in the record to account for an award of compensatory damages for noneconomic loss in excess of what was granted by courts to similarly situated plaintiffs, with consideration given to the type of injury, the severity of the injury, and the plaintiff's age at the time of the injury.
(B) A trial court upholding an award of compensatory damages for noneconomic loss that a party has challenged as inadequate or excessive shall set forth in writing its reasons for upholding the award.
(C) An appellate court shall use a de novo standard of review when considering an appeal of an award of compensatory damages for noneconomic loss on the grounds that the award is inadequate or excessive. Sec. 2315.20. (A) In any tort action, 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 upon which the action is based, 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 or if the source pays the plaintiff a benefit that is in the form of a life insurance payment or a disability payment. However, evidence of the life insurance payment or disability payment may be introduced if the plaintiff's employer paid for the life insurance or disability policy, and the employer is a defendant in the tort action.
(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:
(1) "Tort action" means a civil action for damages for injury, death, or loss to person or property. "Tort action" includes a civil action upon a product liability claim and an asbestos claim. "Tort action" does not include a civil action upon a medical claim, dental claim, optometric claim, or chiropractic claim or a civil action for damages for a breach of contract or another agreement between persons.
(2) "Medical claim," "dental claim," "optometric claim," and "chiropractic claim" have the same meanings as in section 2305.113 of the Revised Code.
(3) "Product liability claim" has the same meaning as in section 2307.71 of the Revised Code.
(4) "Asbestos claim" has the same meaning as in section 2307.91 of the Revised Code.
Sec. 2315.21. (A) As used in this section: (1)
"Tort action" means a civil action for damages for
injury
or loss to
person or property.
"Tort
action"
includes a
product
liability
claim for damages for injury or loss
to person
or
property that is
subject to sections 2307.71 to
2307.80
of the
Revised Code, but
does not include a civil
action
for damages for
a breach of
contract or another agreement between
persons. (2)
"Trier of fact" means the jury or, in a
nonjury
action,
the court. (3) "Home" has the same meaning as in section 3721.10 of the
Revised Code. (4) "Employer" includes, but is not limited to, a parent, subsidiary, affiliate, division, or department of the employer. If the employer is an individual, the individual shall be considered an employer under this section only if the subject of the tort action is related to the individual's capacity as an employer.
(5) "Small employer" means an employer who employs not more than one hundred persons on a full-time permanent basis, or, if the employer is classified as being in the manufacturing sector by the North American industrial classification system, "small employer" means an employer who employs not more than five hundred persons on a full-time permanent basis. (B)(1) In a tort action that is tried to a jury and in which a plaintiff makes a claim for compensatory damages and a claim for punitive or exemplary damages, upon the motion of any party, the trial of the tort action shall be bifurcated as follows:
(a) The initial stage of the trial shall relate only to the presentation of evidence, and a determination by the jury, with respect to whether the plaintiff is entitled to recover compensatory damages for the injury or loss to person or property from the defendant. During this stage, no party to the tort action shall present, and the court shall not permit a party to present, evidence that relates solely to the issue of whether the plaintiff is entitled to recover punitive or exemplary damages for the injury or loss to person or property from the defendant.
(b) If the jury determines in the initial stage of the trial that the plaintiff is entitled to recover compensatory damages for the injury or loss to person or property from the defendant, evidence may be presented in the second stage of the trial, and a determination by that jury shall be made, with respect to whether the plaintiff additionally is entitled to recover punitive or exemplary damages for the injury or loss to person or property from the defendant.
(2) In a tort action that is tried to a jury and in which a plaintiff makes a claim for both compensatory damages and punitive or exemplary damages, the court shall instruct the jury to return, and the jury shall return, a general verdict and, if that verdict is in favor of the plaintiff, answers to an interrogatory that specifies the total compensatory damages recoverable by the plaintiff from each defendant.
(3) In a tort action that is tried to a court and in which a plaintiff makes a claim for both compensatory damages and punitive or exemplary damages, the court shall make its determination with respect to whether the plaintiff is entitled to recover compensatory damages for the injury or loss to person or property from the defendant and, if that determination is in favor of the plaintiff, shall make findings of fact that specify the total compensatory damages recoverable by the plaintiff from the defendant.
(C) Subject to division (D)(E) of this
section,
punitive or
exemplary damages are not recoverable from a defendant in
question
in a tort action unless both of the following apply: (1) The actions or omissions of that defendant demonstrate
malice, or aggravated or egregious fraud, oppression, or insult, or
that defendant as principal or master knowingly authorized, participated
in,
or ratified actions or omissions of an agent or servant that
so
demonstrate. (2) The trier of fact has returned a verdict or has made a determination pursuant to division (B)(2) or (3) of this section of the total compensatory damages recoverable by the
plaintiff in
question has adduced proof of actual
damages that resulted from
actions or omissions as described in
division (B)(1) of this
section from that defendant. (C)(D)(1) In a tort action, the trier of fact shall
determine
the liability of any defendant for punitive or
exemplary damages
and the amount of those damages.
(2) Except as provided in division (D)(6) of this section, all of the following apply regarding any award of punitive or exemplary damages in a tort action: (a) The court shall not enter judgment for punitive or exemplary damages in excess of two times the amount of the compensatory damages awarded to the plaintiff from that defendant, as determined pursuant to division (B)(2) or (3) of this section.
(b) If the defendant is a small employer or individual, the court shall not enter judgment for punitive or exemplary damages in excess of the lesser of two times the amount of the compensatory damages awarded to the plaintiff from the defendant or ten percent of the employer's or individual's net worth when the tort was committed up to a maximum of three hundred fifty thousand dollars, as determined pursuant to division (B)(2) or (3) of this section. (c) Any attorneys fees awarded as a result of a claim for punitive or exemplary damages shall not be considered for purposes of determining the cap on punitive damages. (3) No award of prejudgment interest under division (C)(1) of section 1343.03 of the Revised Code shall include any prejudgment interest on punitive or exemplary damages found by the trier of fact. (4)
In a tort action, the burden of proof
shall be upon a
plaintiff
in question, by clear and
convincing
evidence,
to
establish that
the plaintiff is entitled to
recover punitive or
exemplary damages. (5)(a) In any tort action, except as provided in division (D)(5)(b) or (6) of this section, punitive or exemplary damages shall not be awarded against a defendant if that defendant files with the court a certified judgment, judgment entries, or other evidence showing that punitive or exemplary damages have already been awarded and have been collected, in any state or federal court, against that defendant based on the same act or course of conduct that is alleged to have caused the injury or loss to person or property for which the plaintiff seeks compensatory damages and that the aggregate of those previous punitive or exemplary damage awards exceeds the maximum amount of punitive or exemplary damages that may be awarded under division (D)(2) of this section against that defendant in the tort action.
(b) Notwithstanding division (D)(5)(a) of this section and except as provided in division (D)(6) of this section, punitive or exemplary damages may be awarded against a defendant in either of the following types of tort actions:
(i) In subsequent tort actions involving the same act or course of conduct for which punitive or exemplary damages have already been awarded, if the court determines by clear and convincing evidence that the plaintiff will offer new and substantial evidence of previously undiscovered, additional behavior of a type described in division (C) of this section on the part of that defendant, other than the injury or loss for which the plaintiff seeks compensatory damages. In that case, the court shall make specific findings of fact in the record to support its conclusion. The court shall reduce the amount of any punitive or exemplary damages otherwise awardable pursuant to this section by the sum of the punitive or exemplary damages awards previously rendered against that defendant in any state or federal court. The court shall not inform the jury about the court's determination and action under division (D)(5)(b)(i) of this section.
(ii) In subsequent tort actions involving the same act or course of conduct for which punitive or exemplary damages have already been awarded, if the court determines by clear and convincing evidence that the total amount of prior punitive or exemplary damages awards was totally insufficient to punish that defendant's behavior of a type described in division (C) of this section and to deter that defendant and others from similar behavior in the future. In that case, the court shall make specific findings of fact in the record to support its conclusion. The court shall reduce the amount of any punitive or exemplary damages otherwise awardable pursuant to this section by the sum of the punitive or exemplary damages awards previously rendered against that defendant in any state or federal court. The court shall not inform the jury about the court's determination and action under division (D)(5)(b)(ii) of this section.
(6) Division (D)(2) of this section does not apply to a tort action where the alleged injury, death, or loss to person or property resulted from the defendant acting with one or more of the culpable mental states of purposely and knowingly as described in section 2901.22 of the Revised Code and when the defendant has been convicted of or pleaded guilty to a criminal offense that is a felony, that had as an element of the offense one or more of the culpable mental states of purposely and knowingly as described in that section, and that is the basis of the tort action. (D)(E) This section does not apply to tort actions against
the
state in the court of claims, including, but not limited to, tort actions against a state university or college that are subject to division (B)(1) of section 3345.40 of the Revised Code, 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
the extent that another
section
of the Revised Code
expressly provides any of the
following:
(1) Punitive or exemplary damages are recoverable from a
defendant in question in a tort action on a basis other than that
the actions or omissions of that defendant demonstrate malice, or
aggravated or egregious fraud, oppression, or insult, or on a
basis other than that the defendant in question as principal or
master knowingly authorized, participated in, or ratified actions or
omissions of an agent or servant that so demonstrate. (2) Punitive or exemplary damages are recoverable from a
defendant in question in a tort action irrespective of whether
the
plaintiff in question has adduced proof of actual damages. (3) The burden of proof upon a plaintiff in question to
recover punitive or exemplary damages from a defendant in
question
in a tort action is one other than clear and convincing
evidence. (4) Punitive or exemplary damages are not recoverable from
a
defendant in question in a tort action.
(E)(F) If the trier of fact is a jury, the court shall not instruct the jury with respect to the limits on punitive or exemplary damages pursuant to division (D) of this section, and neither counsel for any party or a witness shall inform the jury or potential jurors of those limits.
(G) When determining the amount of an award of punitive or
exemplary damages against either a home or a residential facility
licensed under section 5123.19 of the Revised Code, the trier of
fact shall consider all of the following: (1) The ability of the home or residential facility to pay
the award of punitive or exemplary damages based on the home's or
residential facility's assets, income, and net worth; (2) Whether the amount of punitive or exemplary damages is
sufficient to deter future tortious conduct; (3) The financial ability of the home or residential
facility, both currently and in the future, to provide
accommodations, personal care services, and skilled nursing care.
Sec. 2315.32. (A) Sections 2315.32 to 2315.36 of the Revised
Code do not apply to tort actions based on a product liability claim described in section 4113.03 of the Revised Code. (B) The
contributory fault of the
plaintiff may be
asserted
as
an
affirmative defense to a
negligence claim or to a
tort claim
other
than a negligence claim, except that the contributory fault of the plaintiff may not be asserted as an affirmative defense to an intentional tort claim.
Sec. 2315.33. The contributory fault of a person
does not bar
the person as plaintiff from recovering damages that
have directly
and
proximately resulted from the tortious conduct
of one or more
other persons, if the contributory fault of the
plaintiff was not
greater than the combined tortious conduct of
all other persons
from whom the
plaintiff seeks recovery in this
action and of all
other persons from whom the
plaintiff does not seek
recovery in
this action. The court shall diminish any
compensatory damages
recoverable by the plaintiff by an amount
that is proportionately
equal to the
percentage of tortious
conduct of the plaintiff as
determined pursuant to section 2315.34
of the Revised Code. This
section does not apply to actions
described in section 4113.03 of
the Revised Code.
Sec. 2315.34. If contributory fault is asserted
and
established as an affirmative defense to a negligence tort claim,
the
court in a nonjury action shall make findings of fact, and the
jury in a jury action shall return a general verdict accompanied
by answers to interrogatories, that shall specify the following:
(A) The total amount of the compensatory damages that would
have been recoverable on that negligence tort claim but for the
tortious conduct of the plaintiff;
(B) The portion of the compensatory damages specified under
division (A) of this section that represents economic loss;
(C) The portion of the compensatory damages specified under
division (A) of this section that represents noneconomic loss;
(D) The percentage of tortious conduct attributable to all
persons as determined pursuant to
section
2307.23 of the Revised
Code.
Sec. 2315.36. If contributory fault is asserted as an
affirmative defense to a negligence tort claim, if it is determined
that the plaintiff was contributorily at fault and
that
contributory fault was a direct and proximate cause of the
injury,
death, or loss to person or property that is the subject of the
tort action, and if
the plaintiff is entitled to recover
compensatory damages pursuant
to section 2315.33 of the Revised
Code from more than one
party, after it makes findings
of fact or
after the jury returns
its general verdict accompanied
by answers
to interrogatories as
described in section 2315.34 of
the Revised
Code, the court shall
enter a judgment that is in
favor of the
plaintiff and that
imposes liability pursuant to
section 2307.22
of the Revised Code.
Sec. 2323.44. (A) There is hereby created the Ohio subrogation rights commission consisting of six voting members and seven nonvoting members. To be eligible for appointment as a voting member, a person shall be a current member of the general assembly. The president of the senate and the speaker of the house of representatives shall jointly appoint six members. The chairman of the senate committee to which bills pertaining to insurance are referred shall be a member of the commission. The chairman of the house committee to which bills pertaining to insurance are referred shall be a member of the commission. The chairman and the ranking minority member of the senate committee to which bills pertaining to civil justice are referred shall each be a member of the commission. The chairman and the ranking minority member of the house committee to which bills pertaining to civil justice are referred shall each be a member of the commission. Of the six members jointly appointed by the president of the senate and the speaker of the house of representative, one shall represent a health insuring company doing business in the state of Ohio, one shall represent a public employees union in Ohio, one shall represent the Ohio academy of trial lawyers, one shall represent a property and casualty insurance company doing business in Ohio, one shall represent the Ohio state bar association, and one shall represent a sickness and accident insurer doing business in Ohio, and all shall have expertise in insurance law, including subrogation rights. A member of the Ohio judicial conference who is an elected or appointed judge shall be a member of the commission. (B) The commission shall do all of the following: (1) Investigate the problems posed by, and the issues surrounding, the N. Buckeye Educ. Council Group Health Benefits Plan v. Lawson (2004), 103 Ohio St. 3d 188 decision regarding subrogation; (2) Prepare a report of recommended legislative solutions to the court decision referred to in division (B)(1) of this section; (3) Submit a report of its findings to the members of the general assembly not later then September 1, 2005. (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 chairpersons of the house and senate committees to which bills pertaining to insurance are referred shall jointly call the first meeting of the commission not later than May 1, 2005. The first meeting shall be organizational, and the members of the commission shall determine the chairperson from among commission members by a majority vote. (E) The legislative service commission shall provide any technical, professional, and clerical employees that are necessary for the commission to perform its duties. Sec. 2323.51. (A) As used in this section: (1)
"Conduct" means any of the following: (a) The filing of a civil action,
the assertion of a claim,
defense, or other position in connection with
a civil action, the filing of a pleading, motion, or other paper in a civil action, including, but not limited to, a motion or paper filed for discovery purposes,
or
the taking of any other action in
connection with a
civil action; (b) The filing by an inmate of a civil action or appeal
against a
government entity or employee, the assertion of a claim,
defense or other
position in connection with a civil action of
that nature or the assertion of
issues of law in an appeal of that
nature, or the taking of any other action
in connection with a
civil action or appeal of that nature. (2)
"Frivolous conduct" means either of the following: (a) Conduct of an inmate or other party to a
civil action,
of an inmate who has filed an appeal of the type
described in
division (A)(1)(b) of this
section, or of the inmate's or other
party's
counsel of record that satisfies either any of the
following: (i) It obviously serves merely to harass or maliciously
injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation. (ii) It is not warranted under existing law and, cannot be
supported by a good faith argument for an extension,
modification,
or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.
(iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. (iv) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief. (b) An inmate's commencement of a civil action or appeal
against
a government entity or employee when any of the following
applies: (i) The claim that is the basis of the civil action fails to
state a claim or the issues of law that are the basis of the
appeal fail to
state any issues of law. (ii) It is clear that the inmate cannot prove material facts
in
support of the claim that is the basis of the civil action or
in support of
the issues of law that are the basis of the appeal. (iii) The claim that is the basis of the civil action
is
substantially
similar to a claim in a previous civil action
commenced by the inmate or the
issues of law that are the basis of
the appeal are substantially similar to
issues of law raised in a
previous appeal commenced by the inmate, in that the
claim that is
the basis of the current civil action or the issues of law that
are the basis of the current appeal involve the same parties or
arise from the
same operative facts as the claim or issues of law
in the previous civil
action or appeal. (3)
"Civil action or appeal against a government entity or
employee,"
"inmate,"
"political subdivision," and
"employee" have
the same
meanings as in section
2969.21 of the Revised Code. (4)
"Reasonable attorney's fees" or
"attorney's fees," when
used in
relation to a civil action or appeal against a government
entity or employee,
includes both of the following, as applicable: (a) The approximate amount of the compensation, and the
fringe
benefits, if any, of the attorney general, an assistant
attorney general, or special counsel appointed by the attorney
general that has been or will be paid by the state in connection
with the legal services that were rendered by the attorney
general, assistant attorney general, or special counsel in the
civil action or appeal against the government entity or employee,
including,
but not limited to, a civil action or appeal commenced
pro se
by an inmate, and that were necessitated by frivolous
conduct of
an inmate represented by counsel of record, the counsel
of record of an inmate, or a pro se inmate. (b) The approximate amount of the compensation, and the
fringe benefits, if any, of a prosecuting attorney or other chief
legal
officer of a
political subdivision, or an assistant to a
chief legal officer of those
natures, who has been or will be paid
by a political subdivision in connection
with the legal services
that were rendered by the chief legal officer or
assistant in the
civil action or appeal against the government entity or
employee,
including, but not limited to, a civil action or appeal commenced
pro se by an inmate, and that were necessitated by frivolous
conduct of an
inmate represented by counsel of record, the counsel
of record of an inmate,
or a pro se inmate. (5)
"State" has the same meaning as in section 2743.01 of
the
Revised
Code.
(6)
"State correctional institution" has the same meaning
as
in section 2967.01 of the
Revised
Code.
(B)(1) Subject to divisions (B)(2) and (3), (C), and (D)
of
this section and except as otherwise provided in division (E)(2)(b) of section 101.15 or division (I)(2)(b) of section 121.22 of the Revised Code, at any time prior
to the commencement of the
trial
in a civil action or within twenty-one days after the entry
of
judgment in a civil action or at any time prior to the hearing in
an
appeal of the type described in division (A)(1)(b) of
this
section that is filed by an inmate or within twenty-one days after
the
entry of judgment in an appeal of that nature, the court not more than thirty days after the entry of final judgment in a civil action or appeal, any party adversely affected by frivolous conduct may file a motion for an
award of
court costs, reasonable
attorney's fees, and other
reasonable expenses incurred in
connection with the civil action
or appeal to any party to
the civil action or appeal who was
adversely affected by
frivolous conduct. The court may assess and make an award may be
assessed to any party to the civil action or appeal who was adversely affected by frivolous conduct, as provided in
division (B)(4) of this section. (2) An award may be made
pursuant to division (B)(1) of this
section upon the motion of a
party to a civil action or an appeal
of the type described in that
division or on the court's own initiative, but only after the court
does all of the
following: (a) Sets a date for a hearing to be conducted in accordance
with
division (B)(2)(c) of this section, to
determine whether
particular conduct was frivolous, to determine, if the
conduct was
frivolous, whether any party was adversely affected by it,
and to
determine, if an award is to be made, the amount of that
award; (b) Gives notice of the date of the hearing described in
division (B)(2)(a) of this section to each party or counsel of
record who allegedly engaged in frivolous conduct and to each
party who allegedly was adversely affected by frivolous conduct; (c) Conducts the hearing described in division (B)(2)(a)
of
this section in accordance with this division, allows the parties
and counsel of record
involved to present any relevant evidence at
the hearing,
including evidence of the type described in division
(B)(5) of
this section, determines that the conduct involved
was
frivolous and that a party was adversely affected by it, and then
determines the amount of the award to be made. If any party or
counsel of
record who allegedly engaged in or allegedly
was
adversely affected by frivolous conduct is confined in a state
correctional
institution or in a county, multicounty, municipal,
municipal-county, or
multicounty-municipal jail or workhouse, the
court, if practicable, may hold
the hearing by telephone or, in
the alternative, at the institution, jail, or
workhouse in which
the party or counsel is confined. (3) The amount of an award made pursuant to
division (B)(1)
of this section that represents reasonable attorney's
fees shall
not exceed, and may be
equal to or less than, whichever of the
following is applicable: (a) If the party is being represented on a contingent fee
basis, an amount that corresponds to reasonable fees that would
have been charged for legal services had the party been
represented on an
hourly fee
basis or another basis other than a
contingent fee basis; (b) In all situations other than that described in
division
(B)(3)(a) of this section, the attorney's fees that were
reasonably incurred by a party. (4) An award made pursuant to
division (B)(1) of this
section may be made against a party, the
party's
counsel of
record, or both. (5)(a) In connection with the hearing described in division
(B)(2)(a) of this section, each party who may be awarded
reasonable
attorney's fees and the party's counsel of record may
submit
to the court
or be ordered by the court to submit to it,
for consideration in
determining the amount of the reasonable
attorney's
fees, an itemized list or
other evidence of the legal
services rendered, the time expended in
rendering the
services,
and whichever of the following is applicable: (i) If the party is being represented by that counsel on a
contingent fee basis, the reasonable attorney's fees that would
have been associated with those services had the party been
represented by that counsel on an hourly fee basis or another
basis other than a contingent fee basis; (ii) In all situations other than those described in
division (B)(5)(a)(i) of this section, the attorney's fees
associated with those services. (b) In connection with the hearing described in
division
(B)(2)(a) of this
section, each party who may be awarded court
costs and other
reasonable expenses incurred in connection with
the civil action
or appeal may submit to the court or be ordered
by the court to submit to
it, for consideration in determining the
amount of the costs and
expenses, an itemized list or other
evidence of the costs and
expenses that were incurred in
connection with
that action or appeal and that were necessitated by the frivolous conduct,
including, but not limited to, expert
witness fees and expenses
associated with discovery. (C) An award of reasonable attorney's fees under this
section does not affect or determine the amount of or the manner
of computation of attorney's fees as between an attorney and the
attorney's client. (D) This section does not affect or limit the application
of
any provision of the Rules of Civil Procedure, the Rules
of
Appellate Procedure, or another court rule
or section of the
Revised Code to the extent that the
provision prohibits an award
of court costs,
attorney's
fees, or other expenses incurred in
connection with a particular
civil action or appeal or authorizes
an
award of court costs, attorney's fees, or other
expenses
incurred in connection with a particular civil action or appeal
in
a specified manner, generally, or subject to limitations.
Sec. 2505.02. (A) As used in this section: (1) "Substantial right" means a right that the United
States Constitution, the Ohio
Constitution, a statute, the common
law, or a rule of procedure entitles a person to enforce or protect. (2) "Special proceeding" means an action or proceeding that is specially
created by statute and that prior to 1853 was not denoted as an action at law
or a suit in equity. (3) "Provisional remedy" means a proceeding ancillary to an action,
including, but not limited to, a proceeding for a preliminary injunction,
attachment, discovery of privileged matter,
suppression of evidence, or a prima-facie showing pursuant to section 2307.85 or 2307.86 of the Revised Code, a prima-facie showing pursuant to section 2307.92 of the Revised Code, or a finding made pursuant to division (A)(3) of section 2307.93 of the Revised Code. (B) An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of the
following: (1) An order that affects a substantial right in an action
that in
effect determines the action and prevents a judgment; (2) An order that affects a
substantial right made in a special proceeding or upon a summary application
in an action after judgment; (3) An order
that vacates or sets aside a judgment
or grants a new trial; (4) An order that grants or denies a provisional remedy and to which both
of the following apply: (a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the
appealing party with respect to the provisional remedy. (b) The appealing party would not be afforded a meaningful or
effective remedy by an appeal following final judgment as to all proceedings,
issues, claims, and parties in the action. (5) An order that determines that an action may or may not be
maintained as a class action; (6) An order determining the constitutionality of any changes to the Revised Code made by Am. Sub. S.B. 281 of the 124th general assembly, including the amendment of 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, 4705.15, and 5111.018, and the enactment of sections 2305.113, 2323.41, 2323.43, and 2323.55 of the Revised Code or any changes made by Sub. S.B. 80 of the 125th general assembly, including the amendment of sections 2125.02, 2305.10, 2305.131, 2315.18, 2315.19, and 2315.21 of the Revised Code. (C) When a court issues an order that vacates or sets aside a
judgment or grants a
new trial, the court, upon the request of either party, shall state in the
order the grounds upon which the new trial is granted or the judgment vacated
or set aside. (D) This section applies to and governs any action, including an
appeal, that is pending in any court on July 22, 1998,
and all claims filed or actions commenced on or after July 22, 1998, notwithstanding
any provision of any prior statute or rule of
law of this state.
Sec. 3719.81. (A) A person may furnish another a sample
of any drug of abuse, or of any drug or pharmaceutical
preparation that would be hazardous to health or safety if
used without the supervision of a licensed health
professional authorized to prescribe drugs, if all of
the following apply: (1) The sample is furnished by a manufacturer,
manufacturer's representative, or wholesale dealer in
pharmaceuticals to a licensed health professional
authorized to prescribe drugs, or is furnished by such a
professional to a patient for use as medication; (2) The drug is in the original container in which it was
placed by the manufacturer, and the container is plainly
marked as a sample; (3) Prior to its being furnished, the drug sample has been
stored under the proper conditions to prevent its deterioration
or contamination; (4) If the drug is of a type which deteriorates with time,
the sample container is plainly marked with the date beyond which
the drug sample is unsafe to use, and the date has not
expired
on the sample furnished. Compliance with the labeling
requirements of the "Federal Food, Drug, and
Cosmetic Act," 52 Stat. 1040
(1938), 21 U.S.C.A. 301, as amended, shall be deemed compliance
with this
section. (5) The drug is distributed, stored, or discarded in such
a way that the drug sample may not be acquired or used by any
unauthorized person, or by any person, including a child, for
whom it may present a health or safety hazard. (B) Division (A) of this section does not do any of the
following: (1) Apply to or restrict the furnishing of any sample of a
nonnarcotic substance
if the substance may, under the "Federal Food, Drug, and
Cosmetic Act" and under the laws of this state, otherwise
be lawfully sold over the counter without a prescription; (2) Authorize
a licensed health professional authorized to prescribe drugs who is a clinical
nurse
specialist, certified nurse-midwife, or certified nurse practitioner, or
advanced practice nurse
to furnish a
sample of a drug that is not a drug the nurse is
authorized to prescribe; (3) Authorize an optometrist to furnish a sample of a
drug that is not a drug the optometrist is authorized to prescribe. (C) The state board of pharmacy shall, in accordance with
Chapter 119. of the Revised Code, adopt rules as
necessary to give effect to this section.
Sec. 4507.07. (A) The registrar of motor vehicles shall
not
grant the application of any minor under eighteen years of
age for
a probationary license, a restricted license, or a
temporary
instruction permit, unless
the application is signed by one of the
minor's parents, the minor's guardian,
another
person having
custody of the applicant, or, if there is no parent
or guardian, a
responsible person who is willing to assume the
obligation imposed
under this section. At the time a minor under eighteen years of age submits an
application for a license or permit at a driver's license
examining
station, the adult who signs the application shall
present
identification establishing that the adult is the
individual whose
signature appears on the application. The
registrar shall prescribe, by rule,
the types of identification
that are suitable for the purposes of this paragraph. If the
adult who signs the application does not provide identification
as
required by this paragraph, the application shall not be
accepted. When a minor under eighteen years of age applies for a
probationary license, a restricted license, or a temporary
instruction permit, the registrar shall give
the adult who signs
the application
notice of the potential liability that may be
imputed to the
adult pursuant to division (B) of this section and
notice of how
the adult may prevent any liability from being
imputed to
the adult pursuant to that division. (B) Any negligence, or willful or wanton misconduct, that
is
committed by a minor under eighteen years of age when driving
a
motor vehicle upon a highway shall be imputed to the person who
has signed the application of the minor for a probationary
license, restricted license, or temporary instruction
permit,
which person shall be jointly and
severally liable with the minor
for any damages caused by the
negligence or the willful or wanton
misconduct. This joint and
several liability is not subject to
section
2307.22, or 2315.36, or 2315.46 of the Revised
Code with
respect
to a negligence tort
claim
that otherwise is
subject
to
that section. There shall be no imputed liability imposed under this
division if a minor under eighteen years of age has proof of
financial responsibility with respect to the operation of a motor
vehicle owned by the minor or, if the minor is not the owner of a
motor vehicle, with respect to the minor's operation of any motor
vehicle, in the form and in the amounts required under Chapter
4509. of the Revised Code. (C) Any person who has signed the application of a minor
under eighteen years of age for a license or permit subsequently
may
surrender to the registrar the license or temporary
instruction
permit of the minor and request that the license or
permit be
canceled. The registrar then shall cancel the license
or
temporary instruction permit, and the person who signed the
application
of the minor shall be relieved from the liability
imposed by
division (B) of this section. (D) Any minor under eighteen years of age whose
probationary
license, restricted license, or temporary
instruction permit is
surrendered to the registrar by the person
who signed the
application for the license or permit and whose license
or
temporary instruction permit subsequently is canceled by the
registrar may obtain a new license or temporary instruction
permit
without having to undergo the examinations otherwise
required by
sections 4507.11 and 4507.12 of the Revised Code and
without
having to tender the fee for that license or
temporary instruction
permit, if the minor is able to produce another parent, guardian,
other person having custody of the minor, or other adult, and
that
adult is willing to assume the
liability imposed under division
(B) of
this section. That adult shall comply
with the procedures
contained in division (A) of this section.
Sec. 4513.263. (A) As used in this section and in section
4513.99 of the Revised Code: (1) "Automobile" means any commercial tractor, passenger
car, commercial car, or truck that is required to be
factory-equipped with an occupant restraining device for the
operator or any passenger by regulations adopted by the United
States secretary of transportation pursuant to the "National
Traffic and Motor Vehicle Safety Act of 1966," 80 Stat. 719, 15
U.S.C.A. 1392. (2) "Occupant restraining device" means a seat safety
belt,
shoulder belt, harness, or other safety device for
restraining a
person who is an operator of or passenger in an
automobile and
that satisfies the minimum federal vehicle safety
standards
established by the United States department of
transportation. (3) "Passenger" means any person in an automobile, other
than its operator, who is occupying a seating position for which
an occupant restraining device is provided. (4) "Commercial tractor," "passenger car," and "commercial
car" have the same meanings as in section 4501.01 of the Revised
Code. (5) "Vehicle" and "motor vehicle," as used in the
definitions of the terms set forth in division (A)(4) of this
section, have the same meanings as in section 4511.01 of the
Revised Code.
(6) "Tort action" means a civil action for damages for injury, death, or loss to person or property. "Tort action" includes a product liability claim, as defined in section 2307.71 of the Revised Code, and an asbestos claim, as defined in section 2307.91 of the Revised Code, but does not include a civil action for damages for breach of contract or another agreement between persons. (B) No person shall do any of the following: (1) Operate an automobile on any street or highway unless
that person is wearing all of the available elements of a properly
adjusted occupant restraining device, or operate a school bus
that
has an occupant restraining device installed for use in its
operator's seat unless that person is wearing all of the available
elements of the device, as properly adjusted; (2) Operate an automobile on any street or highway unless
each passenger in the automobile who is subject to the
requirement
set forth in division (B)(3) of this section is
wearing all of the
available elements of a properly adjusted
occupant restraining
device; (3) Occupy, as a passenger, a seating position on the
front
seat of an automobile being operated on any street or
highway
unless that person is wearing all of the available elements
of a
properly adjusted occupant restraining device; (4) Operate a taxicab on any street or highway unless all
factory-equipped occupant restraining devices in the taxicab are
maintained in usable form. (C) Division (B)(3) of this section does not apply to a
person who is required by section 4511.81 of the Revised Code to
be secured in a child restraint device. Division (B)(1) of this
section does not apply to a person who is an employee of the
United States postal service or of a newspaper home delivery
service, during any period in which the person is engaged in the
operation of an automobile to deliver mail or newspapers to
addressees. Divisions (B)(1) and (3) of this section do not
apply
to a person who has an affidavit signed by a physician
licensed to
practice in this state under Chapter 4731. of the
Revised Code or
a chiropractor licensed to practice in this state
under Chapter
4734. of the Revised Code that states that the
person has a
physical impairment that makes use of an occupant
restraining
device impossible or impractical. (D) Notwithstanding any provision of law to the contrary,
no
law enforcement officer shall cause an operator of an
automobile
being operated on any street or highway to stop the
automobile for
the sole purpose of determining whether a
violation of division
(B) of this section has been or is being
committed or for the sole
purpose of issuing a ticket, citation,
or summons for a violation
of that nature or
causing the arrest of or
commencing a
prosecution of a person for a violation of
that nature, and no
law
enforcement officer shall view the interior or visually
inspect
any automobile being operated on any street or highway
for the
sole purpose of determining whether a violation of that
nature has
been or is being committed. (E) All fines collected for violations of division (B) of
this section, or for violations of any ordinance or resolution of
a political subdivision that is substantively comparable to that
division, shall be forwarded to the treasurer of state for deposit
as follows: (1) Eight per cent shall be deposited into the seat belt
education fund, which is hereby created in the state treasury,
and
shall be used by the department of public safety to establish a
seat belt education program. (2) Eight per cent shall be deposited into the elementary
school program fund, which is hereby created in the state
treasury,
and shall be used by the department of public safety to
establish
and administer elementary school programs that encourage
seat safety
belt use. (3) Two per cent shall be
deposited into the Ohio
medical transportation trust fund created by section
4766.05 of the
Revised
Code. (4) Twenty-eight per cent shall be deposited into the
trauma
and emergency medical services fund, which is hereby created in
the
state treasury, and shall be used by the department of public
safety for the administration of the division of emergency
medical
services and the state board of emergency medical services. (5) Fifty-four per cent shall be
deposited
into the trauma
and emergency
medical services grants fund, which is hereby
created in the state
treasury, and shall be used by the state
board of emergency
medical services to make grants, in accordance
with section
4765.07 of the Revised Code and rules the board
adopts
under
section 4765.11 of the Revised Code. (F)(1) Subject to division (F)(2) of this section, the
failure of a person to wear all of the available elements of a
properly adjusted occupant restraining device in violation of division (B)(1) or (3) of this section
or the failure of a person
to ensure that
each minor who is a
passenger of an automobile
being
operated by
the that person is
wearing all of the available
elements of
such a properly adjusted occupant restraining
device,
in
violation of division (B)(2) of this
section, shall
not
be
considered
or used by the trier of fact in a tort action as
evidence of negligence or contributory negligence,
shall not. But, the trier of fact may determine based on evidence admitted consistent with the Ohio rules of evidence that the failure contributed to the harm alleged in the tort action and may diminish a
recovery
for of compensatory damages that represents noneconomic loss, as defined in section 2307.011 of the Revised Code, in
any civil a tort action
involving the person arising from the ownership,
maintenance, or
operation of an automobile; that could have been recovered but for the plaintiff's failure to wear all of the available elements of a properly adjusted occupant restraining device. Evidence of that failure shall not be used as
a
basis for a
criminal prosecution of the person other than a
prosecution for a
violation of this section; and shall not be
admissible as evidence
in
any civil or a criminal action involving
the person other than a
prosecution for a violation of this
section. (2) If, at the time of an accident involving a passenger
car
equipped with occupant restraining devices, any occupant of
the
passenger car who sustained injury or death was not wearing
an
available occupant restraining device, was not wearing all of
the
available elements of such a device, or was not wearing such
a
device as properly adjusted, then, consistent with the Rules of
Evidence, the fact that the occupant was not wearing the
available
occupant restraining device, was not wearing all of the
available
elements of such a device, or was not wearing such a
device as
properly adjusted is admissible in evidence in relation
to any
claim for relief in a tort action to the extent that the
claim for
relief satisfies all of the following: (a) It seeks to recover damages for injury or death to the
occupant. (b) The defendant in question is the manufacturer,
designer,
distributor, or seller of the passenger car. (c) The claim for relief against the defendant in question
is that the injury or death sustained by the occupant was
enhanced
or aggravated by some design defect in the passenger car
or that
the passenger car was not crashworthy. (3) As used in division (F)(2) of this section,
"tort
action" means a civil action for damages for injury, death, or
loss to person or property.
"Tort action" includes a product
liability claim 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 a contract or another agreement between persons.
(G)(1) Whoever violates division (B)(1) of this section
shall be fined thirty dollars. (2) Whoever violates division (B)(3) of this section shall
be fined twenty dollars. (3) Except as otherwise provided in this division, whoever
violates division (B)(4) of this section is guilty of a minor
misdemeanor. If the offender previously has been convicted of or
pleaded guilty to a violation of division (B)(4) of this section,
whoever violates division (B)(4) of this section is guilty of a
misdemeanor of the third degree.
Sec. 4713.02. (A) There is hereby created the state board
of cosmetology, consisting of
all of the following
members
appointed by the governor, with the advice and consent of the
senate: (1) One person holding a current, valid cosmetologist,
managing cosmetologist, or cosmetology instructor license at the
time of appointment; (2) Two persons holding current, valid managing
cosmetologist licenses and actively engaged in managing beauty
salons at the time
of appointment; (3)
One person who holds a current, valid independent
contractor license at the time of appointment or the owner or
manager of a licensed salon in which at least one person holding a
current, valid independent contractor license practices a branch
of cosmetology; (4) One person who represents individuals who teach the
theory and practice of a branch of cosmetology at a vocational
school; (5) One owner of a
licensed school of cosmetology; (6) One owner of at least five
licensed
salons; (7) One person who is either an advanced practice nurse
approved under section 4723.55 of the Revised Code, a certified
nurse practitioner or clinical nurse specialist holding a
certificate of authority issued under section 4723.41 Chapter 4723. of the Revised
Code, or a physician authorized under Chapter 4731. of the Revised
Code to practice medicine and surgery or osteopathic medicine and
surgery; (8) One person representing the general public. (B) The superintendent of public instruction shall nominate
three persons for the governor to choose from when making an
appointment under division (A)(4) of this section. (C) All members shall be at least twenty-five years of age,
residents of the state, and citizens of the United States. No
more than two members, at any time, shall be graduates of the
same
school of cosmetology. Except for the initial members appointed under
divisions (A)(3) and (4) of this section, terms of
office are for
five years. The term of the
initial member appointed
under division (A)(3) of this section
shall be three years. The
term of the initial member appointed
under division (A)(4) of this
section shall be four years. Terms
shall commence on the first
day of November and
end on the
thirty-first day of October.
Each member shall hold office from
the date of appointment
until
the end of the term for which
appointed. In case of
a vacancy
occurring on the board, the
governor shall, in the same
manner
prescribed for the regular
appointment to the board, fill
the
vacancy by appointing a member.
Any member appointed to fill
a
vacancy occurring prior to the
expiration of the term for which
the member's predecessor was
appointed shall hold office for
the
remainder
of such term. Any
member shall continue in office
subsequent to
the expiration date
of the member's term until
the
member's successor takes office, or
until a period of sixty days
has elapsed,
whichever occurs
first.
Before entering upon the
discharge of the duties
of the office of
member, each member shall
take, and file with the
secretary of
state, the oath of office
required by Section 7 of Article XV,
Ohio
Constitution. The members of the board shall receive an amount fixed
pursuant to Chapter 124. of the Revised Code per diem for every
meeting of the board which they attend, together with their
necessary expenses, and mileage for each mile necessarily
traveled. The members of the board shall annually elect, from among
their number, a chairperson. The board shall prescribe the duties of its officers and
establish an office at Columbus, Ohio. The board shall keep all
records and files at the office and have the records and files at
all reasonable hours open to public inspection. The board also
shall adopt a seal.
Sec. 4715.42. (A)(1) As used in this section, "indigent and
uninsured person" and
"operation" have the same meanings as in section 2305.234 of
the Revised Code.
(2) For the purposes of this section, a person shall be
considered retired from practice if the person's license has been
surrendered or allowed to expire with the intention of ceasing to
practice as a dentist or dental hygienist for remuneration. (B) The Within thirty days after receiving an application for a volunteer's certificate that includes all of the items listed in divisions (C)(1), (2), and (3) of this section, the state dental board may shall issue, without examination, a
volunteer's certificate to a person who is retired from practice so that
the person may provide dental services to indigent and
uninsured persons. (C) An application for a volunteer's certificate shall include
all of the following: (1) A copy of the applicant's degree from dental college or
dental hygiene school. (2) One of the following, as applicable: (a) A copy of the applicant's most recent license to practice
dentistry or dental hygiene issued by a jurisdiction in the United
States that licenses persons to practice dentistry or dental
hygiene. (b) A copy of the applicant's most recent license equivalent to a
license to practice dentistry or dental hygiene in one or more branches
of the United States armed services that the United States
government issued. (3) Evidence of one of the following, as applicable: (a) The applicant has maintained for at least ten years prior to
retirement full licensure in good standing in any jurisdiction in the
United States that licenses persons to practice dentistry
or dental hygiene. (b) The applicant has practiced as a dentist or dental hygienist
in good standing for at least ten years prior to retirement in one or
more branches of the United States armed services. (4) A notarized statement from the applicant, on a form
prescribed by the board, that the applicant will not accept any form of
remuneration for any dental services rendered while in possession of a
volunteer's certificate.
(D) The holder of a volunteer's certificate may provide dental
services only to indigent and uninsured persons. The
holder shall not accept any form of remuneration for providing dental
services while in possession of the certificate. Except in a dental
emergency, the holder shall not perform any operation. The board may
revoke a volunteer's certificate on receiving proof satisfactory
to the board that the holder has engaged in practice in this state
outside the scope of the holder's certificate or that there are
grounds for action against the person under section 4715.30 of the
Revised Code. (E)(1) A volunteer's certificate shall be valid for a period of
three years, and may be renewed upon the application of the holder, unless the certificate was previously revoked under division
(D) of this section. The board shall maintain a register of all
persons who hold volunteer's certificates. The board shall not charge a fee for issuing or
renewing a certificate pursuant to this section. (2) To be eligible for renewal of a volunteer's certificate, the
holder of the certificate shall certify to the board completion of sixty
hours of continuing dental education that meets the requirements of
section 4715.141 of the Revised Code and the rules adopted under
that section, or completion of eighteen hours of continuing dental
hygiene education that meets the requirements of section
4715.25 of the Revised Code and the rules adopted under that
section, as the case may be. The board may not renew a
certificate if the holder has not complied with the appropriate
continuing education requirements. Any entity for which the holder provides dental services
may pay for or reimburse the holder for any costs incurred in obtaining the
required continuing education credits. (3) The board shall issue to each person who qualifies under this
section for a volunteer's certificate a wallet certificate and a wall
certificate that state that the certificate holder is authorized to
provide dental services pursuant to the laws of this state. The
holder shall keep the wallet certificate on the holder's person
while providing dental services and shall display the wall
certificate prominently at the location where the holder primarily practices. (4) The holder of a volunteer's certificate issued pursuant to
this section is subject to the immunity provisions in section 2305.234
of the Revised Code. (F) The board shall adopt rules in accordance with
Chapter 119.
of the Revised Code to administer and enforce this
section.
(G) Within ninety days after the effective date of this amendment, the state dental board shall make available through the board's website the application form for a volunteer's certificate under this section, a description of the application process, and a list of all items that are required by division (C) of this section to be submitted with the application. Sec. 4723.01. As used in this chapter: (A)
"Registered nurse" means an individual who holds a
current, valid license issued under this chapter that authorizes
the practice of nursing as a registered nurse. (B)
"Practice of nursing as a registered nurse" means
providing to individuals and groups nursing care requiring
specialized knowledge, judgment, and skill derived from the
principles of biological, physical, behavioral, social, and
nursing sciences. Such nursing care includes: (1) Identifying patterns of human responses to actual or
potential health problems amenable to a nursing regimen; (2) Executing a nursing regimen through the selection,
performance, management, and evaluation of nursing actions; (3) Assessing health status for the purpose of providing
nursing care; (4) Providing health counseling and health teaching; (5) Administering medications, treatments, and executing
regimens authorized by an individual who is
authorized to practice
in this state and is acting within the course of the
individual's
professional practice; (6) Teaching, administering, supervising, delegating, and
evaluating nursing practice. (C)
"Nursing regimen" may include preventative,
restorative,
and health-promotion activities. (D)
"Assessing health status" means the collection of data
through nursing assessment techniques, which may include
interviews, observation, and physical evaluations for the purpose
of providing nursing care. (E)
"Licensed practical nurse" means an individual who
holds
a current, valid license issued under this chapter that
authorizes
the practice of nursing as a licensed practical nurse. (F)
"The practice of nursing as a licensed practical
nurse"
means providing to individuals and groups nursing care
requiring
the application of basic knowledge of the biological,
physical,
behavioral, social, and nursing sciences at the
direction of a
licensed physician, dentist, podiatrist,
optometrist,
chiropractor, or registered nurse. Such nursing
care includes: (1) Observation, patient teaching, and care in a diversity
of health care settings; (2) Contributions to the planning, implementation, and
evaluation of nursing; (3) Administration of medications and treatments
authorized
by an individual who is
authorized to practice in this state and
is acting within the course of the
individual's professional
practice, except that administration of
intravenous therapy shall
be performed only in accordance with section
4723.17 or 4723.171
of the Revised Code. Medications may be administered by a
licensed
practical nurse upon proof of completion of a course in
medication administration approved by the board of nursing. (4) Administration to an adult of intravenous therapy
authorized by an individual who is authorized to practice in this
state and is acting within the course of the individual's
professional
practice, on the condition that the licensed
practical nurse is authorized
under section 4723.17 or 4723.171 of
the Revised Code to perform intravenous therapy
and performs
intravenous
therapy only in accordance with those sections. (G)
"Certified registered
nurse anesthetist" means a
registered nurse who holds a valid
certificate of authority issued
under this chapter that
authorizes the practice of nursing as a
certified registered
nurse anesthetist in accordance with section
4723.43 of the
Revised Code and rules adopted by the board of
nursing. (H)
"Clinical nurse specialist" means a registered
nurse who
holds a valid certificate of authority issued under
this chapter
that authorizes the practice of nursing as a
clinical nurse
specialist in accordance with section 4723.43 of
the Revised Code
and rules adopted by the board
of nursing. (I)
"Certified nurse-midwife" means a registered nurse who
holds a valid certificate of authority issued under this chapter
that authorizes the practice of nursing as a certified
nurse-midwife in
accordance with section 4723.43 of the Revised
Code and rules adopted by the board of nursing. (J)
"Certified nurse practitioner" means a registered nurse
who holds a valid certificate of authority issued under this
chapter that authorizes the practice of nursing as a certified
nurse
practitioner in accordance with section 4723.43 of the
Revised Code and rules adopted by the board of
nursing. (K)
"Physician" means an individual
authorized under Chapter
4731. of
the Revised Code to practice
medicine and surgery or
osteopathic medicine and surgery. (L)
"Collaboration" or
"collaborating" means the
following: (1) In the case of a clinical nurse specialist, except
as
provided in division (L)(3) of this section, or a
certified nurse
practitioner, that one or more podiatrists acting
within the scope
of
practice of podiatry in accordance with section 4731.51 of the
Revised Code and with whom the nurse has entered into a
standard
care arrangement or one or more physicians
with whom the nurse has
entered into a
standard care arrangement are continuously
available to communicate with the clinical nurse specialist or
certified nurse practitioner either in person or by radio,
telephone, or
other form of telecommunication; (2) In the case of a certified nurse-midwife, that one
or
more physicians with whom the certified nurse-midwife has entered
into
a standard care arrangement are
continuously available to
communicate with the certified nurse-midwife
either in person or
by radio, telephone, or other form of
telecommunication; (3) In the case of a clinical nurse specialist who practices
the nursing specialty of mental health or psychiatric
mental
health without being authorized to prescribe drugs and therapeutic
devices, that one or more physicians are
continuously
available to
communicate with the nurse either in person or by radio,
telephone, or other form of telecommunication. (M)
"Supervision," as it pertains to a certified
registered
nurse
anesthetist, means that the certified
registered nurse
anesthetist is under the direction of a podiatrist acting
within
the podiatrist's scope of practice in accordance with section
4731.51
of the Revised
Code, a dentist acting within the dentist's
scope of practice in accordance with Chapter
4715. of the Revised
Code, or a physician, and, when administering
anesthesia, the
certified registered nurse anesthetist is in the immediate
presence of the podiatrist, dentist, or physician. (N)
"Standard care arrangement," except as it
pertains to an
advanced practice nurse, means a
written, formal guide for
planning and evaluating a patient's health care that
is developed
by one or more collaborating
physicians or podiatrists and a
clinical nurse
specialist, certified nurse-midwife, or certified
nurse practitioner and meets
the requirements of section 4723.431
of the
Revised Code. (O)
"Advanced practice nurse," until three years and eight
months
after May 17, 2000, means a
registered nurse who is
approved by the
board of nursing under section 4723.55 of the
Revised Code
to practice as an advanced practice nurse certified registered nurse anesthetist, clinical nurse specialist, certified nurse-midwife, or certified nurse practitioner. (P)
"Dialysis care" means the care and procedures that a
dialysis technician is authorized to provide and perform, as
specified in
section 4723.72 of the Revised Code. (Q)
"Dialysis technician" means an individual who holds a
current, valid certificate or temporary certificate issued under
this chapter
that authorizes the individual to practice as a
dialysis technician in
accordance with section 4723.72 of the
Revised Code. (R) "Certified community health worker" means an individual who holds a current, valid certificate as a community health worker issued by the board of nursing under section 4723.85 of the Revised Code. Sec. 4723.03. (A) No person shall engage in the practice
of
nursing as a registered nurse, represent the person as
being a
registered nurse, or use the title
"registered nurse," the
initials
"R.N.," or any other title implying that the person is a
registered nurse, for a fee, salary, or other consideration, or
as
a volunteer, without holding a current, valid license as a
registered nurse under this chapter. (B) No person shall engage in the practice of nursing as a
licensed practical nurse, represent the
person as
being a
licensed
practical nurse, or use the title
"licensed practical
nurse," the
initials
"L.P.N.," or any other title implying that
the person is
a licensed practical nurse, for a fee, salary, or
other
consideration, or as a volunteer, without holding a current,
valid license as a practical nurse under this chapter. (C) No person shall use the titles or initials
"graduate
nurse,"
"G.N.,"
"professional nurse,"
"P.N.,"
"graduate practical
nurse,"
"G.P.N.,"
"practical nurse,"
"P.N.,"
"trained nurse,"
"T.N.," or any other statement, title, or initials that would
imply or represent to the public that the person is authorized to
practice nursing in this state, except as follows: (1) A person licensed under this chapter to practice nursing
as a registered
nurse may use that title and the initials
"R.N."; (2) A person licensed
under this chapter to practice nursing
as a licensed practical
nurse may use that title and the initials
"L.P.N."; (3) A person authorized under this chapter to practice
nursing as a certified registered nurse anesthetist may use that
title, the initials
"C.R.N.A." or
"N.A.," and
any other title or
initials approved by the board of nursing; (4) A person authorized under this chapter to practice
nursing as a clinical nurse specialist may use that title, the
initials
"C.N.S.," and any other title or
initials approved by the
board; (5) A person authorized under this chapter to practice
nursing as a certified nurse-midwife may use that title, the
initials
"C.N.M.," and any other title
or initials approved by the
board; (6) A person authorized under this chapter to practice
nursing as a certified nurse practitioner may use that title, the
initials
"C.N.P.," and any other
title or initials approved by the
board; (7) A person authorized under this chapter to practice as a certified registered nurse anesthetist, clinical nurse specialist, certified nurse-midwife, or certified nurse practitioner may use the title "advanced practice nurse" or the initials "A.P.N." (D) No person shall employ a person not licensed as a
registered nurse under this chapter to engage in the practice of
nursing as a registered nurse. No person shall employ a person
not licensed as a practical nurse under this chapter to engage in
the practice of nursing as a licensed practical nurse. (E) No person shall sell or fraudulently
obtain or furnish
any nursing diploma, license, certificate, renewal, or record, or
aid or abet such acts. Sec. 4723.28. (A) The board of nursing, by a vote of
a
quorum, may revoke
or may refuse to grant a nursing license,
certificate of
authority, or dialysis technician
certificate
to a
person
found by
the board to have committed fraud in passing an
examination
required to obtain the license, certificate of
authority, or
dialysis technician certificate or to have committed
fraud,
misrepresentation, or
deception in applying for or securing
any
nursing license,
certificate of authority, or dialysis
technician
certificate
issued by the
board. (B)
Subject to division (N) of this section, the board of
nursing,
by a vote of a
quorum, may
impose one or more of the
following sanctions: deny,
revoke,
suspend, or place restrictions
on any nursing
license,
certificate
of authority, or dialysis
technician
certificate issued by
the
board; reprimand or otherwise
discipline a holder of a
nursing
license, certificate of
authority, or dialysis technician
certificate; or impose a fine of
not more than five hundred
dollars
per violation. The sanctions
may be imposed for any of
the
following: (1) Denial, revocation, suspension, or restriction of
authority to
practice a
health
care
occupation, including nursing
or practice
as a dialysis technician, for any reason other than a
failure to renew, in Ohio or another state or jurisdiction; (2) Engaging in the practice of nursing or engaging in
practice as a
dialysis technician, having failed to
renew a
nursing license or dialysis technician certificate
issued under
this chapter, or while a nursing license or dialysis
technician
certificate is under
suspension; (3) Conviction of, a plea of guilty to, a judicial
finding
of guilt of, a judicial finding of guilt resulting from a
plea of
no contest to, or a judicial finding of eligibility for
intervention
in lieu of conviction for, a misdemeanor committed in
the course of
practice; (4) Conviction of, a plea of guilty to, a judicial
finding
of guilt of, a judicial finding of guilt resulting from a
plea of
no contest to, or a judicial finding of eligibility for
intervention
in
lieu of conviction for, any felony or of any crime
involving gross
immorality or moral turpitude; (5) Selling, giving away, or administering drugs or
therapeutic devices for
other than legal and legitimate
therapeutic purposes; or conviction of,
a plea of guilty to, a
judicial finding of guilt of, a
judicial finding of guilt
resulting from a plea of no contest to, or a
judicial finding of
eligibility for intervention in lieu of conviction
for, violating
any municipal, state, county, or federal drug law; (6) Conviction of, a plea of guilty to, a judicial
finding
of guilt of, a judicial finding of guilt resulting from a
plea of
no contest to, or a judicial finding of eligibility for
intervention
in lieu of conviction for, an act in another
jurisdiction that
would
constitute a felony or a crime of moral
turpitude in Ohio; (7) Conviction of, a plea of guilty to, a judicial
finding
of guilt of, a judicial finding of guilt resulting from a
plea of
no contest to, or a judicial finding of eligibility for
intervention
in lieu of conviction for, an act in the course of
practice in
another
jurisdiction that would constitute a
misdemeanor in Ohio; (8) Self-administering or otherwise taking into the body
any
dangerous drug, as defined in section 4729.01 of the Revised Code,
in any way not in accordance with a legal,
valid
prescription
issued for that individual; (9) Habitual indulgence in the use of controlled
substances,
other habit-forming drugs, or alcohol or other
chemical substances
to an extent that impairs ability to
practice; (10) Impairment of the ability to practice according to
acceptable and prevailing standards of safe nursing care because
of habitual or excessive use
of
drugs, alcohol, or other chemical
substances that impair the ability to practice; (11) Impairment of the ability to practice according to
acceptable and
prevailing standards of safe nursing care because
of a physical or mental
disability; (12) Assaulting or causing harm to a patient or depriving
a
patient of the means to summon assistance; (13) Obtaining or attempting to obtain money or anything
of
value by intentional misrepresentation or material deception
in
the course of practice; (14) Adjudication by a probate court of being mentally ill
or mentally
incompetent. The board may restore the person's
nursing license or
dialysis technician certificate upon
adjudication
by a probate court of the person's restoration to
competency or
upon submission to the board of other proof of
competency. (15) The suspension or termination of employment by the
department of defense or the veterans administration of the
United
States for any act that violates or would violate this
chapter; (16) Violation of this chapter or any rules adopted under
it; (17) Violation of any restrictions placed on a nursing
license or
dialysis technician certificate by
the board; (18) Failure to use universal blood and body fluid
precautions established by rules adopted under section 4723.07 of
the Revised Code; (19) Failure to practice in accordance with acceptable
and
prevailing standards of safe nursing care or safe dialysis care; (20) In the case of a registered nurse, engaging in
activities that exceed the practice of nursing as a registered
nurse; (21) In the case of a licensed practical nurse, engaging
in
activities that exceed the practice of nursing as a licensed
practical nurse; (22) In the case of a dialysis technician, engaging in
activities that
exceed those permitted under section 4723.72 of
the Revised Code; (23) Aiding and abetting a person in
that person's practice
of
nursing without a license or practice as a dialysis technician
without a
certificate issued under this chapter; (24) In the case of a certified registered nurse
anesthetist,
clinical nurse specialist,
certified nurse-midwife, or
certified nurse practitioner,
or
advanced practice nurse, except
as provided in division (M) of this
section, either of the
following: (a) Waiving the payment of all or any part of a deductible
or copayment that a patient, pursuant to a health insurance or
health care policy, contract, or plan that covers such nursing
services, would otherwise be required to pay if the waiver is
used
as an enticement to a patient or group of patients to
receive
health care services from that provider; (b) Advertising that the nurse will waive the payment of all
or
any part of a deductible or copayment that a patient, pursuant
to
a health insurance or health care policy, contract, or plan
that
covers such nursing services, would otherwise be required to
pay. (25) Failure to comply with the terms and conditions of
participation in
the chemical dependency monitoring program
established under section
4723.35 of the Revised Code; (26) Failure to comply with the terms and conditions
required under the
practice intervention and improvement program
established under section
4723.282 of the Revised Code; (27) In the case of a certified registered nurse
anesthetist,
clinical
nurse specialist, certified nurse-midwife,
or certified nurse
practitioner: (a) Engaging in activities that exceed those
permitted for
the nurse's nursing specialty under section 4723.43 of the
Revised
Code; (b) Failure to meet the quality assurance standards
established under section 4723.07 of the
Revised Code. (28) In the case of a clinical nurse specialist,
certified
nurse-midwife, or certified nurse practitioner, failure to
maintain a standard
care arrangement in accordance with section
4723.431 of the
Revised Code or to practice in accordance with the
standard
care arrangement; (29) In the case of a
clinical nurse specialist, certified
nurse-midwife,
or certified nurse practitioner who holds a
certificate to
prescribe issued under section 4723.48 of the
Revised Code, failure to prescribe drugs and
therapeutic devices
in accordance with section 4723.481 of the
Revised Code; (30) Prescribing any drug or device
to perform or induce an
abortion, or otherwise performing or inducing an
abortion; (31) Failure to establish and maintain professional
boundaries with a patient, as specified in rules adopted under
section 4723.07
of the Revised Code; (32) Regardless of whether the contact or verbal behavior
is
consensual, engaging with a patient other than the spouse of the
registered
nurse, licensed practical nurse, or dialysis technician
in any of the following: (a) Sexual contact, as defined in section 2907.01 of the
Revised Code; (b) Verbal behavior that is sexually demeaning to the
patient or
may be reasonably interpreted by the patient as
sexually demeaning.
(33) Assisting suicide as defined in section 3795.01 of the
Revised Code. (C) Disciplinary actions taken by the board under divisions
(A)
and (B) of this section shall be taken pursuant to an
adjudication
conducted under Chapter 119. of the Revised Code,
except that in lieu of a hearing,
the board may enter into a
consent agreement with an individual to resolve an
allegation of a
violation of this chapter or any rule adopted under it. A
consent
agreement, when ratified by a vote of a quorum, shall constitute
the
findings and order of the board with respect to the matter
addressed in the
agreement. If the board refuses to ratify a
consent agreement, the admissions
and findings contained in the
agreement shall be of no effect. (D) The hearings of the board shall be conducted in
accordance
with Chapter 119. of the Revised Code, the board may
appoint a hearing examiner, as
provided in section 119.09 of the
Revised Code, to conduct any hearing the board is
authorized
to
hold under Chapter 119. of the Revised Code. In any instance in which the board is required under Chapter
119.
of the Revised Code to give notice of an opportunity for a
hearing and the applicant or
license holder does not make a timely
request for a hearing in accordance with
section 119.07 of the
Revised Code, the board is not required to hold a hearing, but may
adopt, by a vote of a quorum, a final order that contains the
board's
findings. In the final order, the board may order any of
the sanctions listed
in division (A) or (B) of this section. (E) If a criminal action is brought against a registered
nurse,
licensed
practical nurse, or dialysis
technician for an
act
or crime described in divisions (B)(3) to (7)
of this section and
the action is dismissed by the trial court
other than on the
merits, the board shall conduct an
adjudication to determine
whether the
registered nurse, licensed practical nurse, or
dialysis technician
committed the act
on which the action was
based. If the board determines on the
basis of the adjudication
that the registered nurse,
licensed practical nurse, or dialysis
technician committed the act,
or if the registered nurse, licensed
practical nurse,
or dialysis technician fails to participate in
the
adjudication, the
board may take action as though the
registered nurse,
licensed practical nurse, or dialysis technician
had been
convicted of the act. If the board takes action on the basis of a conviction,
plea,
or a judicial
finding as described
in divisions (B)(3) to (7)
of
this section that is overturned on
appeal, the registered
nurse,
licensed practical
nurse, or dialysis technician may, on
exhaustion of the appeal
process, petition the board for
reconsideration of its action.
On receipt of the petition and
supporting court documents, the
board shall temporarily rescind
its action. If the board
determines that the decision on appeal
was a decision on the
merits, it shall permanently rescind its
action. If the board
determines that the decision on appeal was
not a decision on the
merits, it shall conduct an
adjudication
to determine
whether the registered nurse, licensed practical
nurse, or dialysis technician committed the act on which the
original conviction, plea, or judicial finding was
based.
If the
board determines on the basis of the adjudication
that the
registered nurse, licensed practical nurse, or
dialysis technician
committed such act, or if the
registered nurse, licensed practical
nurse, or dialysis technician does
not request an adjudication,
the board shall reinstate
its action;
otherwise, the board shall
permanently rescind its action. Notwithstanding the provision of division (C)(2) of section
2953.32 of the Revised Code specifying that if records pertaining
to a criminal case are sealed under that section the proceedings
in the case shall be deemed not to have occurred, sealing of the
records of a conviction on which the board has based an action
under this section shall have no effect on the board's action or
any sanction imposed by the board under this section. The board shall not be required to
seal, destroy, redact, or
otherwise modify its records to reflect the court's
sealing of
conviction records. (F) The board may investigate an individual's criminal
background
in performing its duties under this section. (G) During the course of an investigation conducted under
this section, the board
may compel any registered nurse,
licensed
practical nurse, or dialysis technician or applicant under this
chapter to submit to a
mental or physical
examination, or both, as
required by the board and at the expense
of the individual, if the
board finds reason to believe that the
individual under
investigation may have a physical or mental impairment that
may
affect the individual's ability to provide safe nursing care.
Failure
of any individual to submit to a
mental or physical
examination when directed constitutes an
admission of the
allegations, unless the failure is due to
circumstances beyond the
individual's control, and a default and
final order may be entered
without the taking of testimony or
presentation of evidence.
If the board finds that an individual
is impaired, the board
shall require the individual to submit to
care, counseling, or
treatment approved or designated by the
board, as a condition for
initial, continued, reinstated, or
renewed authority to practice.
The individual shall
be afforded
an opportunity to demonstrate to
the board that the individual can
begin or resume
the individual's
occupation in compliance with acceptable and
prevailing
standards
of care under the provisions of the individual's authority
to
practice.
For purposes
of this division, any
registered nurse,
licensed practical nurse, or dialysis technician or
applicant
under this chapter
shall be deemed to have given
consent to submit
to a mental or physical examination when
directed to do so in
writing by the board, and to have waived all
objections to the
admissibility of testimony or examination
reports that constitute
a privileged communication. (H) The board shall investigate evidence that appears to
show that any person has violated any provision of this chapter
or
any rule of the board. Any person may report to the board any
information the person may have that appears to show a violation
of any provision of this chapter or rule of the board. In the
absence of bad faith, any person who reports such information or
who testifies before the board in any adjudication
conducted under
Chapter 119. of the Revised Code shall not be
liable for civil
damages as a result of the report or testimony. (I) All of the following apply under this chapter with
respect to
the confidentiality of information: (1) Information received by the board pursuant to an
investigation is confidential and not subject to discovery in any
civil action, except that the board may disclose information to
law
enforcement officers and government entities investigating a
registered
nurse, licensed practical nurse, or dialysis
technician
or a person who may have engaged in the unauthorized practice of
nursing. No law enforcement officer or government entity with
knowledge of any information disclosed by the board pursuant to
this division
shall divulge the information to any other person or
government entity except
for the purpose of an adjudication by a
court or licensing or registration
board or officer to which the
person to whom the information relates is a
party. (2) If an investigation requires a review of
patient
records,
the investigation and proceeding shall be conducted in
such a
manner as to protect patient confidentiality. (3) All adjudications and investigations of
the board shall
be
considered civil actions for the purposes of section 2305.252
of
the Revised Code. (4) Any board activity that involves continued
monitoring of
an individual as part of or following any disciplinary action
taken under this section shall be conducted in a manner that
maintains the
individual's confidentiality. Information received
or maintained by the board
with respect to the board's monitoring
activities is confidential and not
subject to discovery in any
civil action. (J) Any action taken by the board under this section
resulting in a suspension from practice shall be accompanied by a
written statement of the conditions under which the person may be
reinstated to practice. (K) When the board refuses to grant a license or
certificate
to an applicant, revokes a license or
certificate, or refuses to
reinstate a license or certificate, the board may
specify that its
action is permanent. An individual subject to permanent
action
taken by the board is forever ineligible to hold a license or
certificate of the type that was refused or revoked and the board
shall not
accept from the individual an application for
reinstatement of the license or
certificate or for a new license
or certificate. (L) No unilateral surrender of a nursing license,
certificate of authority, or dialysis technician certificate
issued
under this
chapter shall be effective unless accepted by
majority vote of
the board. No application for a nursing license,
certificate
of authority, or dialysis technician certificate
issued under this
chapter may be withdrawn without a majority vote
of the board. The board's
jurisdiction to take disciplinary
action under this section is not removed or
limited when an
individual has a license or certificate
classified as inactive or
fails to renew a license or certificate. (M) Sanctions shall not be imposed under
division (B)(24) of
this section against any licensee who waives
deductibles and
copayments as follows: (1) In compliance with the health benefit plan that
expressly allows such a practice. Waiver of the deductibles or
copayments shall be made only with the full knowledge and consent
of
the plan purchaser, payer, and third-party administrator.
Documentation of the consent shall
be made available to the board
upon request. (2) For professional services rendered to any other person
licensed pursuant to this chapter to the extent allowed by this
chapter and the rules of the board. (N)(1) Any person who enters
a prelicensure nursing
education program on or after June 1, 2003,
and who subsequently
applies under division (A) of section 4723.09
of the Revised Code
for licensure to practice as a
registered
nurse or as a licensed
practical nurse and any person who applies
under division (B) of
that section for license by endorsement to
practice nursing as a
registered nurse or as a licensed practical
nurse shall submit a
request to the bureau of
criminal
identification and investigation
for the bureau to conduct a
criminal records check of the
applicant and to send the results to
the board, in accordance with
section 4723.09 of the Revised Code. The board shall refuse to grant a license to practice
nursing
as a registered nurse or as a licensed practical nurse
under
section 4723.09 of the Revised Code to a person who entered a
prelicensure nursing education program on or after June 1, 2003,
and applied under division (A) of section 4723.09 of the Revised
Code for the license or a person who applied under division (B) of
that section for the license, if the
criminal records check
performed in accordance with division (C) of
that section
indicates that the person has pleaded guilty to, been
convicted
of, or has had a judicial finding of guilt for violating
section
2903.01, 2903.02, 2903.03, 2903.11, 2905.01, 2907.02,
2907.03,
2907.05, 2909.02, 2911.01, or 2911.11 of the Revised Code
or a
substantially similar law of another state, the United
States, or
another country. (2) Any person who enters
a dialysis training program on or
after June 1, 2003,
and who
subsequently applies for a certificate
to practice as a
dialysis
technician shall submit a request to the
bureau of criminal
identification and
investigation for the bureau
to conduct a
criminal records check of the applicant and to send
the results to
the board, in accordance with section 4723.75 of
the Revised
Code. The board shall refuse to issue a certificate to
practice as
a dialysis technician under section 4723.75 of the
Revised Code to
a person who entered a dialysis training program on or after June
1, 2003, and whose criminal records check performed in
accordance
with division (C) of that section indicates that the
person has
pleaded guilty to, been convicted of, or has had a
judicial
finding of guilt for violating section 2903.01, 2903.02,
2903.03,
2903.11, 2905.01, 2907.02, 2907.03, 2907.05, 2909.02,
2911.01, or
2911.11 of the Revised Code or a substantially similar
law of
another state, the United States, or another country. Sec. 4723.43. A certified
registered nurse anesthetist,
clinical nurse specialist,
certified nurse-midwife, or certified
nurse practitioner may provide to
individuals
and groups nursing
care that requires knowledge and skill
obtained from advanced
formal education and clinical experience. In this capacity as an advanced practice nurse, a certified nurse-midwife is subject to division (A) of this section, a certified registered nurse anesthetist is subject to division (B) of this section, a certified nurse practitioner is subject to division (C) of this section, and a clinical nurse specialist is subject to division (D) of this section. (A) A nurse authorized to practice as a
certified
nurse-midwife,
in collaboration with one or more physicians, may
provide the
management of preventive services and those primary
care services necessary to
provide health care to women
antepartally, intrapartally,
postpartally, and gynecologically,
consistent with the nurse's education and
certification, and in
accordance with rules adopted by the board. No certified nurse-midwife may perform version,
deliver
breech or face
presentation, use forceps, do any obstetric
operation, or treat any
other abnormal condition, except in
emergencies. Division
(A) of this section does not prohibit a
certified nurse-midwife from
performing episiotomies or normal
vaginal deliveries, or repairing vaginal
tears. A certified
nurse-midwife
who holds a certificate to
prescribe issued under
section 4723.48 of the
Revised
Code may, in collaboration with
one
or more physicians, prescribe drugs and therapeutic devices in
accordance with section 4723.481 of the Revised Code. (B) A nurse authorized to practice as a
certified registered
nurse anesthetist, with the supervision and
in the immediate
presence of a physician, podiatrist, or dentist,
may administer
anesthesia and perform anesthesia induction,
maintenance, and
emergence, and may perform with supervision
preanesthetic
preparation and evaluation, postanesthesia care,
and clinical
support functions,
consistent with the nurse's education and
certification, and in accordance with rules adopted by the
board.
A certified registered nurse anesthetist
is not required to obtain
a certificate to prescribe in order to provide the anesthesia
care
described in this division. The physician, podiatrist, or dentist supervising a certified
registered
nurse anesthetist must be actively engaged in practice
in
this state. When
a certified registered nurse anesthetist is
supervised by a podiatrist, the nurse's scope of
practice is
limited to the anesthesia procedures that the podiatrist has the
authority under section 4731.51 of the Revised
Code to perform. A
certified registered nurse anesthetist may not
administer general
anesthesia under the supervision of a podiatrist in a
podiatrist's
office. When a certified registered nurse
anesthetist is
supervised by a dentist, the nurse's
scope of practice is limited
to the anesthesia procedures that the dentist
has the authority
under Chapter 4715. of the
Revised Code to perform. (C) A nurse authorized to practice as a certified nurse
practitioner, in collaboration with one or more physicians or
podiatrists,
may provide preventive and primary care services and
evaluate
and promote patient wellness within the nurse's nursing
specialty,
consistent with the nurse's education and
certification, and in
accordance with rules adopted by the board.
A certified nurse practitioner who holds a certificate to
prescribe issued under section 4723.48 of the
Revised
Code may, in
collaboration with
one or more physicians or podiatrists,
prescribe drugs and therapeutic
devices in accordance with section
4723.481 of the Revised Code. When a certified nurse
practitioner is collaborating with a
podiatrist, the nurse's
scope of practice is limited to the
procedures that the podiatrist has the
authority under section
4731.51 of the Revised
Code to perform. (D) A nurse authorized to practice as a
clinical nurse
specialist, in collaboration with one or more physicians
or
podiatrists, may provide and manage the care of individuals and
groups with complex health problems and provide health care
services that promote, improve, and manage health
care within the
nurse's nursing specialty, consistent with the nurse's
education
and in accordance with rules adopted by the board.
A clinical
nurse specialist who holds a certificate to
prescribe issued under
section 4723.48 of the
Revised
Code may, in collaboration with
one
or more physicians or podiatrists, prescribe drugs and therapeutic
devices in accordance with section 4723.481 of the
Revised Code. When a clinical nurse specialist is collaborating with a
podiatrist,
the nurse's scope of practice is limited to the
procedures that the
podiatrist has the authority under section
4731.51 of the
Revised Code to perform.
Sec. 4723.44. (A) No person shall do any of the following unless
the person
holds a current, valid certificate
of authority to practice nursing as a certified
registered nurse anesthetist, clinical nurse specialist,
certified nurse-midwife, or certified nurse practitioner issued by the
board of
nursing under this chapter: (1) Engage in the practice of nursing as a certified
registered nurse anesthetist, clinical nurse specialist,
certified nurse-midwife, or certified nurse practitioner for a fee, salary, or
other consideration, or as a volunteer; (2) Represent the person as being a
certified
registered
nurse anesthetist, clinical nurse specialist, certified nurse-midwife, or
certified nurse practitioner; (3) Use any title or initials implying that the person is a
certified registered nurse anesthetist, clinical nurse
specialist, certified nurse-midwife, or certified nurse practitioner; (4) Represent the person as being an advanced practice nurse; (5) Use any title or initials implying that the person is an advanced practice nurse. (B) No person who is not certified by the
national council on certification of nurse anesthetists of the
American association of nurse anesthetists, the national
council on recertification of nurse anesthetists of the
American association of nurse anesthetists, or another
national certifying organization approved by the board under
section 4723.46 of the Revised Code shall use
the
title "certified registered nurse anesthetist" or the
initials "C.R.N.A.," or
any other title or initial implying that the person has been
certified by the council or
organization. (C) No certified registered nurse anesthetist,
clinical nurse specialist, certified nurse-midwife, or certified nurse
practitioner shall do any of the following: (1) Engage, for a fee, salary, or other consideration,
or as a volunteer, in the practice of a nursing specialty other
than the specialty designated on the nurse's current, valid certificate
of authority issued by the board under this chapter; (2) Represent the person as being
authorized to practice any nursing specialty other than the specialty
designated on the current, valid certificate of authority; (3) Use the title "certified registered nurse
anesthetist" or the initials "N.A." or "C.R.N.A.," the title "clinical nurse
specialist" or the initials
"C.N.S.," the title "certified nurse-midwife" or the initials
"C.N.M.," the title "certified nurse
practitioner" or the initials
"C.N.P.," the title "advanced practice nurse" or the initials "A.P.N.," or any other title or
initials implying that the nurse is authorized to practice any nursing
specialty other than the specialty designated on the nurse's current,
valid certificate of authority; (4) Enter into a standard care arrangement with a physician or podiatrist
whose practice is not the same as or similar to the nurse's nursing
specialty; (5) Prescribe drugs or therapeutic devices unless the
nurse holds a current, valid certificate to prescribe issued
under section 4723.48 of the Revised Code; (6) Prescribe drugs or
therapeutic devices under a certificate to prescribe in a manner that does not
comply with section 4723.481 of the
Revised Code; (7) Prescribe any drug or device to perform or induce an
abortion, or otherwise Perform or induce an abortion. (D) No person shall knowingly employ a person
to engage in the practice of nursing as a certified registered
nurse anesthetist, clinical nurse specialist, certified nurse-midwife, or
certified nurse practitioner unless the person so employed holds a current,
valid certificate of authority to engage in that nursing
specialty issued by the board under this chapter. (E) A certificate certified by the executive director
of the board, under the official seal of the
board, to the effect that it appears from the
records that no certificate of authority to practice
nursing as a certified registered nurse
anesthetist, clinical nurse specialist, certified nurse-midwife, or certified
nurse
practitioner has been issued to any person specified therein,
or that a certificate, if issued, has been revoked or suspended,
shall be received as prima-facie evidence of the record in any
court or before any officer of the state. Sec. 4723.48. (A) A clinical nurse specialist, certified
nurse-midwife, or certified nurse practitioner seeking authority
to prescribe
drugs and
therapeutic devices shall file with the
board of nursing a written
application for a certificate to
prescribe. The board of nursing
shall issue a certificate to
prescribe to each applicant who meets
the requirements specified
in section 4723.482 or 4723.484 of the
Revised Code. Except as provided in division (B) of this section, the
initial
certificate to prescribe that the board issues to an
applicant shall be issued
as an externship certificate. Under an
externship certificate,
the nurse may obtain
experience in
prescribing drugs and therapeutic devices by
participating in an
externship that evaluates the nurse's
competence, knowledge, and
skill in pharmacokinetic principles and
their clinical application
to the specialty being practiced.
During the externship, the
nurse may prescribe drugs and
therapeutic devices only when one or
more physicians are providing
supervision in accordance with rules
adopted under section 4723.50
of the Revised Code. After completing the
externship, the holder of an externship
certificate may apply for a new
certificate
to prescribe. On
receipt of the new certificate, the nurse may
prescribe drugs and
therapeutic devices in collaboration with one
or more physicians
or podiatrists. (B) In the case of an advanced practice nurse an applicant who
on May
17,
2000, is was approved
under section 4723.56 of the Revised Code to
prescribe
drugs and therapeutic devices under section 4723.56 of the Revised Code, as that section existed on that date, the initial certificate
to prescribe that the
board issues to the nurse applicant under this section
shall not be an externship
certificate.
The nurse applicant shall be issued
a certificate to prescribe that permits
the nurse recipient to prescribe
drugs and therapeutic devices in
collaboration with one or more
physicians or podiatrists.
Sec. 4723.482. (A) An applicant shall include with the
application submitted under section
4723.48 of the Revised Code all of the following: (1) Subject to section 4723.483 of the Revised Code,
evidence of
holding a current, valid certificate of authority issued under
section 4723.41 of the Revised Code this chapter to practice as a
clinical
nurse specialist, certified nurse-midwife, or certified nurse practitioner; (2) Except for an advanced practice
nurse a person who on the effective date of this section is May 17, 2000, was approved under
section 4723.56 of the Revised Code to prescribe drugs and
therapeutic devices under section 4723.56 of the Revised Code, as that section existed on that date,
evidence of successfully completing the instruction in
advanced pharmacology and related topics specified in division
(B) of this section; (3) The fee required by section 4723.08 of the Revised
Code for
a certificate to prescribe; (4) Any additional information the board requires pursuant to
rules adopted under section 4723.50 of the Revised Code. (B) All of the following apply to the instruction required under
division (A)(2) of this section: (1) The instruction must be obtained not longer than three years
before the application for the certificate to prescribe is filed. (2) The instruction must be obtained through a course of study
consisting of planned classroom and clinical study that is approved
by the board of nursing in accordance with standards established in
rules adopted under section 4723.50 of the Revised Code. (3) The content of the instruction must be specific to the
applicant's nursing specialty and include all of the following: (a) A minimum of thirty contact hours of training in advanced
pharmacology that includes pharmacokinetic principles and clinical application
and the use of
drugs and therapeutic devices in the prevention of illness and
maintenance of health; (b) Training in the fiscal and ethical implications of
prescribing drugs and therapeutic devices; (c) Training in the state and federal laws that apply to the
authority to prescribe; (d) Any additional training required pursuant to rules
adopted
under section 4723.50 of the Revised Code.
Sec. 4729.01. As used in this chapter:
(A) "Pharmacy," except when used in a context that refers to the practice of pharmacy, means any area, room, rooms, place of business, department, or portion of any of the foregoing where the practice of pharmacy is conducted.
(B) "Practice of pharmacy" means providing pharmacist care requiring specialized knowledge, judgment, and skill derived from the principles of biological, chemical, behavioral, social, pharmaceutical, and clinical sciences. As used in this division, "pharmacist care" includes the following:
(1) Interpreting prescriptions; (2) Compounding or dispensing drugs and dispensing drug therapy related devices;
(3) Counseling individuals with regard to their drug therapy, recommending drug therapy related devices, and assisting in the selection of drugs and appliances for treatment of common diseases and injuries and providing instruction in the proper use of the drugs and appliances; (4) Performing drug regimen reviews with individuals by discussing all of the drugs that the individual is taking and explaining the interactions of the drugs;
(5) Performing drug utilization reviews with licensed health professionals authorized to prescribe drugs when the pharmacist determines that an individual with a prescription has a drug regimen that warrants additional discussion with the prescriber;
(6) Advising an individual and the health care professionals treating an individual with regard to the individual's drug therapy; (7) Acting pursuant to a consult agreement with a physician authorized under Chapter 4731. of the Revised Code to practice medicine and surgery or osteopathic medicine and surgery, if an agreement has been established with the physician; (8) Administering the adult immunizations specified in section 4729.41 of the Revised Code, if the pharmacist has met the requirements of that section.
(C) "Compounding" means the preparation, mixing, assembling, packaging, and labeling of one or more drugs in any of the following circumstances: (1) Pursuant to a prescription issued by a licensed health professional authorized to prescribe drugs;
(2) Pursuant to the modification of a prescription made in accordance with a consult agreement;
(3) As an incident to research, teaching activities, or chemical analysis; (4) In anticipation of prescription drug orders based on routine, regularly observed dispensing patterns.
(D) "Consult agreement" means an agreement to manage an individual's drug therapy that has been entered into by a pharmacist and a physician authorized under Chapter 4731. of the Revised Code to practice medicine and surgery or osteopathic medicine and surgery.
(1) Any article recognized in the United States pharmacopoeia and national formulary, or any supplement to them, intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or animals; (2) Any other article intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or animals;
(3) Any article, other than food, intended to affect the structure or any function of the body of humans or animals;
(4) Any article intended for use as a component of any article specified in division (C)(E)(1), (2), or (3) of this section; but does not include devices or their components, parts, or accessories.
(F) "Dangerous drug" means any of the following: (1) Any drug to which either of the following applies:
(a) Under the "Federal Food, Drug, and Cosmetic Act," 52 Stat. 1040 (1938), 21 U.S.C.A. 301, as amended, the drug is required to bear a label containing the legend "Caution: Federal law prohibits dispensing without prescription" or "Caution: Federal law restricts this drug to use by or on the order of a licensed veterinarian" or any similar restrictive statement, or the drug may be dispensed only upon a prescription;
(b) Under Chapter 3715. or 3719. of the Revised Code, the drug may be dispensed only upon a prescription.
(2) Any drug that contains a schedule V controlled substance and that is exempt from Chapter 3719. of the Revised Code or to which that chapter does not apply;
(3) Any drug intended for administration by injection into the human body other than through a natural orifice of the human body. (G) "Federal drug abuse control laws" has the same meaning as in section 3719.01 of the Revised Code.
(H) "Prescription" means a written, electronic, or oral order for drugs or combinations or mixtures of drugs to be used by a particular individual or for treating a particular animal, issued by a licensed health professional authorized to prescribe drugs.
(I) "Licensed health professional authorized to prescribe drugs" or "prescriber" means an individual who is authorized by law to prescribe drugs or dangerous drugs or drug therapy related devices in the course of the individual's professional practice, including only the following:
(1) A dentist licensed under Chapter 4715. of the Revised Code;
(2) Until January 17, 2000, an advanced practice nurse approved under section 4723.56 of the Revised Code to prescribe drugs and therapeutic devices; (3) A clinical nurse specialist, certified nurse-midwife, or certified nurse practitioner who holds a certificate to prescribe issued under section 4723.48 of the Revised Code;
(4)(3) An optometrist licensed under Chapter 4725. of the Revised Code to practice optometry under a therapeutic pharmaceutical agents certificate;
(5)(4) A physician authorized under Chapter 4731. of the Revised Code to practice medicine and surgery, osteopathic medicine and surgery, or podiatry;
(6)(5) A veterinarian licensed under Chapter 4741. of the Revised Code.
(J) "Sale" and "sell" include delivery, transfer, barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal proprietor, agent, or employee. (K) "Wholesale sale" and "sale at wholesale" mean any sale in which the purpose of the purchaser is to resell the article purchased or received by the purchaser.
(L) "Retail sale" and "sale at retail" mean any sale other than a wholesale sale or sale at wholesale. (M) "Retail seller" means any person that sells any dangerous drug to consumers without assuming control over and responsibility for its administration. Mere advice or instructions regarding administration do not constitute control or establish responsibility.
(N) "Price information" means the price charged for a prescription for a particular drug product and, in an easily understandable manner, all of the following:
(1) The proprietary name of the drug product;
(2) The established (generic) name of the drug product; (3) The strength of the drug product if the product contains a single active ingredient or if the drug product contains more than one active ingredient and a relevant strength can be associated with the product without indicating each active ingredient. The established name and quantity of each active ingredient are required if such a relevant strength cannot be so associated with a drug product containing more than one ingredient.
(5) The price charged for a specific quantity of the drug product. The stated price shall include all charges to the consumer, including, but not limited to, the cost of the drug product, professional fees, handling fees, if any, and a statement identifying professional services routinely furnished by the pharmacy. Any mailing fees and delivery fees may be stated separately without repetition. The information shall not be false or misleading. (O) "Wholesale distributor of dangerous drugs" means a person engaged in the sale of dangerous drugs at wholesale and includes any agent or employee of such a person authorized by the person to engage in the sale of dangerous drugs at wholesale. (P) "Manufacturer of dangerous drugs" means a person, other than a pharmacist, who manufactures dangerous drugs and who is engaged in the sale of those dangerous drugs within this state.
(Q) "Terminal distributor of dangerous drugs" means a person who is engaged in the sale of dangerous drugs at retail, or any person, other than a wholesale distributor or a pharmacist, who has possession, custody, or control of dangerous drugs for any purpose other than for that person's own use and consumption, and includes pharmacies, hospitals, nursing homes, and laboratories and all other persons who procure dangerous drugs for sale or other distribution by or under the supervision of a pharmacist or licensed health professional authorized to prescribe drugs. (R) "Promote to the public" means disseminating a representation to the public in any manner or by any means, other than by labeling, for the purpose of inducing, or that is likely to induce, directly or indirectly, the purchase of a dangerous drug at retail.
(S) "Person" includes any individual, partnership, association, limited liability company, or corporation, the state, any political subdivision of the state, and any district, department, or agency of the state or its political subdivisions.
(T) "Finished dosage form" has the same meaning as in section 3715.01 of the Revised Code. (U) "Generically equivalent drug" has the same meaning as in section 3715.01 of the Revised Code.
(V) "Animal shelter" means a facility operated by a humane society or any society organized under Chapter 1717. of the Revised Code or a dog pound operated pursuant to Chapter 955. of the Revised Code. (W) "Food" has the same meaning as in section 3715.01 of the Revised Code.
Sec. 4731.22. (A) The state medical board,
by an
affirmative vote of not fewer than six of its members,
may revoke
or may
refuse to grant a certificate to a person found by the
board to
have committed fraud during the administration of the
examination for a certificate to practice or to have
committed
fraud, misrepresentation, or deception in applying for
or securing
any certificate to practice or certificate of
registration issued
by the board. (B) The board, by an affirmative
vote of not fewer than
six
members, shall, to the extent permitted by law, limit,
revoke, or
suspend an individual's certificate to
practice, refuse to
register an individual, refuse
to reinstate a certificate, or
reprimand or place on
probation the
holder of a certificate for
one or more of the following reasons: (1) Permitting one's name or one's certificate to practice
or
certificate of
registration to be used by a person, group, or
corporation when
the individual concerned is not actually
directing the treatment
given; (2) Failure to maintain
minimal standards applicable to the
selection or administration of drugs, or failure to employ
acceptable
scientific methods in the selection of drugs or other
modalities
for treatment of disease; (3) Selling, giving away, personally furnishing,
prescribing, or
administering drugs for other than legal and
legitimate therapeutic purposes
or a plea of guilty to, a judicial
finding of guilt of, or a
judicial finding of eligibility for
intervention in
lieu of conviction
of, a violation of any federal
or state law regulating the possession,
distribution, or use of
any drug; (4) Willfully betraying a professional confidence. For purposes of this division, "willfully betraying a
professional
confidence" does not include providing any
information, documents, or reports
to a child fatality review
board under sections 307.621 to 307.629 of the
Revised Code and
does not include the making of a report of an
employee's use of a
drug of abuse, or a report of a condition of
an employee other
than one involving the use of a drug of abuse,
to the employer of
the employee as described in division (B) of
section 2305.33 of
the Revised Code.
Nothing in this division
affects the immunity
from
civil liability conferred by that section upon a physician
who
makes either type of report in accordance with division (B) of
that section. As used in this division, "employee," "employer,"
and "physician" have the same meanings as in section 2305.33 of
the Revised Code. (5) Making a false, fraudulent,
deceptive, or misleading
statement
in the solicitation of or advertising
for patients; in
relation
to the practice of medicine and surgery, osteopathic
medicine
and surgery, podiatric medicine and surgery, or a
limited branch of medicine;
or in securing or attempting to secure
any certificate
to practice or certificate of registration issued
by the board. As used in this division, "false, fraudulent, deceptive, or
misleading statement" means a statement that includes a
misrepresentation of fact, is likely to mislead or deceive
because
of a failure to disclose material facts, is intended or
is likely
to create false or unjustified expectations of
favorable results,
or includes representations or implications
that in reasonable
probability will cause an ordinarily prudent
person to
misunderstand or be deceived. (6) A departure from, or the failure to conform to,
minimal
standards of care of similar practitioners under the same
or
similar circumstances, whether or not actual injury to a
patient
is established; (7) Representing, with the purpose of obtaining
compensation
or other advantage as personal gain or for
any other
person, that
an incurable disease or injury, or other incurable
condition, can
be permanently cured; (8) The obtaining of, or attempting to obtain, money or
anything of value by fraudulent misrepresentations in the course
of practice; (9) A plea of guilty to, a judicial finding of guilt
of, or
a judicial finding of eligibility for
intervention in lieu of
conviction for, a felony; (10) Commission of an act that constitutes a felony in
this
state, regardless of the jurisdiction in which the act was
committed; (11) A plea of guilty to, a judicial finding of guilt
of, or
a judicial finding of eligibility for
intervention in lieu of
conviction for, a misdemeanor committed in the course of practice; (12) Commission of an act in the course of practice that
constitutes a
misdemeanor
in this state, regardless of the
jurisdiction in which the act was
committed; (13) A plea of guilty to, a judicial finding of guilt
of, or
a judicial finding of eligibility for
intervention in lieu of
conviction for, a misdemeanor involving moral turpitude; (14) Commission of an act involving moral turpitude that
constitutes a
misdemeanor
in this state, regardless of the
jurisdiction in which the act was
committed; (15) Violation of the conditions of limitation placed by
the
board upon a certificate to practice; (16) Failure to pay license renewal fees specified in this
chapter; (17) Except as authorized in section 4731.31 of the Revised
Code,
engaging in the division of fees
for referral of patients,
or the
receiving of a thing of value in return for a specific
referral of a patient
to utilize a particular service or business; (18) Subject to section 4731.226 of the Revised Code,
violation of
any provision of a code of ethics
of the American
medical association, the American osteopathic
association, the
American podiatric medical association, or any
other national
professional organizations that
the board specifies by
rule. The
state medical board shall
obtain and keep on file current copies
of the codes of ethics of
the various national professional
organizations. The
individual whose certificate is being
suspended or
revoked
shall not be found to have violated any
provision of a code of
ethics of an organization not appropriate
to the
individual's profession. For purposes of this division, a "provision of a code
of
ethics of a national professional organization" does not
include
any provision that would preclude the making of a
report by a
physician of an employee's use of a drug of abuse, or
of a
condition of an employee other than one involving the use of
a
drug of abuse, to the employer of the employee as described in
division (B) of section 2305.33 of the Revised Code. Nothing
in
this division affects the
immunity from civil liability conferred
by that section upon a
physician who makes either type of report
in accordance with
division (B) of that section. As used in this
division,
"employee," "employer," and "physician" have the same
meanings as
in section 2305.33 of the Revised Code. (19) Inability to practice according to acceptable and
prevailing standards of care by reason of mental illness or
physical illness, including, but not limited to, physical
deterioration that adversely affects cognitive, motor, or
perceptive skills. In enforcing this division, the board, upon a
showing of a
possible violation, may compel any individual
authorized to
practice by this chapter or
who has
submitted an application
pursuant to this chapter
to submit to a mental examination,
physical
examination, including an HIV test, or both a mental
and
a physical
examination. The expense of the
examination is the
responsibility of the individual compelled to be
examined.
Failure
to submit to a mental or physical examination
or consent
to an HIV
test ordered by the board
constitutes an admission of
the
allegations against the
individual
unless the failure is due
to
circumstances beyond the individual's control,
and a default
and
final order may be entered without the taking
of testimony or
presentation of evidence. If the board finds an
individual unable
to practice because of the reasons
set forth in
this division, the
board shall require the individual
to submit to
care, counseling,
or treatment by physicians approved or
designated by the board, as
a condition for initial, continued,
reinstated, or renewed
authority to practice. An
individual
affected under this division
shall be
afforded an opportunity to demonstrate to the board the
ability to
resume practice in compliance with acceptable and
prevailing
standards under the provisions of the individual's
certificate.
For the
purpose of this division, any individual who
applies for or receives a certificate to
practice under this
chapter accepts the privilege of
practicing in
this state and, by
so doing, shall be
deemed to have given consent to submit to a
mental or
physical examination when directed to do so in writing
by the
board, and to have waived all objections to the
admissibility of
testimony or examination reports that constitute
a privileged
communication. (20) Except when civil penalties are imposed under section
4731.225
or 4731.281 of the Revised Code, and subject to section
4731.226 of the Revised Code, violating or
attempting to violate,
directly or indirectly, or assisting in or
abetting the violation
of, or conspiring to violate, any
provisions of this chapter or
any rule promulgated by the board.
This division does not apply to a violation or attempted
violation of, assisting in or abetting the violation of, or a
conspiracy to violate, any provision of this chapter or any rule
adopted by the board that would preclude the making
of a
report by
a physician of an employee's use of a drug of abuse, or
of a
condition of an employee other than one involving the use of
a
drug of abuse, to the employer of the employee as described in
division (B) of section 2305.33 of the Revised Code. Nothing
in
this division affects the
immunity from civil liability conferred
by that section upon a
physician who makes either type of report
in accordance with
division (B) of that section. As used in this
division,
"employee," "employer," and "physician" have the same
meanings as
in section 2305.33 of the Revised Code. (21) The violation of any abortion rule adopted by the
public health council pursuant to section 3701.341 of the Revised
Code; (22) Any of the following actions taken by the agency
responsible for regulating the practice of medicine and surgery,
osteopathic
medicine and surgery, podiatric medicine and surgery,
or the limited branches of medicine in
another jurisdiction, for
any reason other than the
nonpayment of fees: the
limitation,
revocation, or suspension of an individual's license
to practice;
acceptance of an
individual's license surrender; denial of a
license; refusal to
renew or reinstate
a license; imposition of
probation; or
issuance of an order of censure or other reprimand; (23) The violation of section 2919.12 of the Revised Code
or
the performance or inducement of an abortion upon a pregnant
woman
with actual knowledge that the conditions specified in
division
(B) of section 2317.56 of the Revised Code have not been
satisfied
or with a heedless indifference as to whether those
conditions
have been satisfied, unless an affirmative defense as
specified in
division (H)(2) of that section would apply in a
civil action
authorized by division (H)(1) of that section; (24) The revocation, suspension, restriction, reduction,
or
termination of clinical privileges by the United
States department
of
defense or department of veterans
affairs or the termination or
suspension of a certificate of
registration to prescribe drugs by
the drug enforcement
administration of the United States
department of
justice; (25) Termination or suspension from participation in the
medicare or
medicaid
programs by the department of health and
human services or other
responsible agency for any act or acts
that also would
constitute a violation of division (B)(2), (3),
(6), (8), or (19)
of this section; (26) Impairment of ability to practice according to
acceptable and prevailing standards of care because of habitual
or
excessive use or abuse of drugs, alcohol, or other substances
that
impair ability to practice. For the purposes of this division, any individual authorized
to practice
by this chapter accepts
the privilege of
practicing in
this state subject to supervision by the board. By
filing an
application for or
holding a
certificate to practice under this
chapter, an
individual shall
be deemed to have given consent to
submit to a mental or
physical examination when ordered to do so
by the board in
writing, and to have waived all objections to the
admissibility
of testimony or examination reports that constitute
privileged
communications. If it has reason to believe that any individual authorized to
practice by
this chapter or any applicant for
certification to
practice suffers such impairment, the board may compel
the
individual to submit to a mental or physical examination, or
both.
The expense of the examination is the
responsibility of the
individual
compelled to be examined. Any
mental or physical
examination required under this division shall
be undertaken by a
treatment provider or physician who is qualified to
conduct the
examination and who is chosen by the
board. Failure to submit to a mental or physical
examination ordered
by the board constitutes an admission of the
allegations against
the individual unless the failure is due to
circumstances beyond
the individual's control, and a default and
final order may be
entered without the taking of testimony or
presentation of
evidence. If the board determines that the
individual's ability
to practice is impaired, the board shall
suspend the individual's
certificate or deny the
individual's application and shall require
the individual, as a condition for initial, continued,
reinstated,
or renewed certification to practice, to
submit to treatment. Before being eligible to apply for reinstatement of a
certificate suspended under this division, the
impaired
practitioner shall
demonstrate to the board the ability
to resume
practice in
compliance with acceptable and prevailing standards of
care under
the provisions of the practitioner's certificate. The
demonstration shall
include, but shall not be limited to, the
following: (a) Certification from a treatment provider approved under
section 4731.25 of the Revised Code that the
individual has
successfully completed any required inpatient treatment; (b) Evidence of continuing full compliance with an
aftercare
contract or consent agreement; (c) Two written reports indicating that the individual's
ability to practice has been assessed and that the individual has
been found capable of practicing according to acceptable and
prevailing
standards of care. The reports shall be made by
individuals or
providers approved by the board for making the
assessments and
shall describe the basis for their determination. The board may reinstate a certificate suspended under
this
division after that demonstration and after the individual has
entered into a written consent agreement. When the impaired practitioner resumes practice, the board
shall
require continued
monitoring of the individual. The
monitoring shall include, but not be
limited to, compliance with
the written consent agreement entered
into before reinstatement or
with conditions imposed by board
order after a hearing, and, upon
termination of the consent
agreement, submission to the board for
at least two years of
annual written progress reports made under
penalty of perjury
stating whether the individual has maintained
sobriety. (27) A second or subsequent violation of section 4731.66
or
4731.69 of the Revised Code; (28) Except as provided in division (N) of this section: (a) Waiving the payment of all or any part of a
deductible
or copayment that a patient, pursuant to a health
insurance or
health care policy, contract, or plan that covers
the individual's
services, otherwise would be
required
to pay if the waiver is used
as an enticement to a patient or group of
patients to receive
health care services from that
individual; (b) Advertising that the individual will waive the
payment
of all or
any part of a deductible or copayment that a patient,
pursuant to
a health insurance or health care policy, contract, or
plan that
covers the individual's services, otherwise would
be
required to pay. (29) Failure to use universal blood and body fluid
precautions established by rules adopted under section 4731.051
of
the Revised Code; (30) Failure of a collaborating physician to fulfill
the
responsibilities agreed to by the
physician
and an advanced
practice nurse
participating in a pilot program under section
4723.52 of the Revised Code; (31) Failure to provide notice to, and receive
acknowledgment of the
notice from, a patient when required by
section 4731.143 of the Revised Code
prior to providing
nonemergency professional services, or failure to maintain
that
notice in the patient's file;
(32)(31) Failure of a physician supervising a physician
assistant to
maintain supervision in accordance with the
requirements of Chapter
4730. of the Revised Code and the rules
adopted under that chapter;
(33)(32) Failure of a physician or podiatrist to enter into a
standard care
arrangement with a clinical nurse specialist,
certified nurse-midwife, or
certified nurse practitioner with whom
the physician or podiatrist is in
collaboration pursuant to
section 4731.27 of the Revised Code
or failure to fulfill the
responsibilities of collaboration after entering
into a standard
care arrangement;
(34)(33) Failure to comply with the terms of a consult agreement
entered into with a pharmacist pursuant to section 4729.39 of the
Revised Code;
(35)(34) Failure to cooperate in an investigation conducted by
the board under division (F) of this section, including
failure to
comply with a subpoena or order issued by the board
or failure to
answer truthfully a question presented by the
board at a
deposition or in written interrogatories, except that
failure to
cooperate with an investigation shall not constitute
grounds for
discipline under this section if a court of
competent jurisdiction
has issued an order that either quashes a
subpoena or permits the
individual to withhold the testimony or
evidence in issue;
(36)(35) Failure to supervise an acupuncturist in accordance
with
Chapter 4762. of the Revised Code and the board's rules for
supervision of an
acupuncturist;
(37)(36) Failure to supervise an anesthesiologist assistant in
accordance with
Chapter 4760. of the Revised Code and the board's
rules for supervision of an
anesthesiologist assistant;
(38)(37) Assisting suicide as defined in section 3795.01 of the
Revised Code.
(C) Disciplinary actions taken by the board under divisions
(A) and (B) of this section shall be taken pursuant to an
adjudication under Chapter 119. of the Revised Code, except that
in lieu of an
adjudication, the board may enter into a consent
agreement with an
individual to resolve an allegation of a
violation of this chapter or any rule
adopted under it. A consent
agreement, when ratified by an
affirmative vote of not fewer than
six members of the board,
shall constitute the findings and order
of the board with
respect to the matter addressed in the
agreement. If the board
refuses to ratify a consent agreement,
the admissions and
findings contained in the consent agreement
shall be of no force
or effect. (D) For purposes of divisions (B)(10), (12), and (14) of
this
section, the commission of the act may be established by a
finding by the board, pursuant to an adjudication under
Chapter
119. of the Revised Code, that the individual committed the act.
The board
does not have jurisdiction under those divisions if
the
trial court renders a final judgment in the individual's favor and
that judgment is based upon an
adjudication on
the merits. The
board has jurisdiction under those
divisions if the trial court
issues an order of
dismissal upon technical or procedural grounds. (E) The sealing of conviction records by any court shall
have
no effect upon a prior board order entered under this section
or upon the board's jurisdiction to take action under this section
if,
based upon a plea of guilty,
a judicial finding of guilt, or a
judicial finding of eligibility for intervention in
lieu of
conviction, the board issued a notice of opportunity for
a hearing
prior to the court's order to seal the records. The
board shall
not be required to seal, destroy, redact, or
otherwise modify its
records to reflect the court's sealing of
conviction records. (F)(1) The board shall investigate evidence that appears
to
show that a person has violated any provision of this
chapter or
any rule adopted under it. Any person may report to the board
in
a signed writing
any information that the person may have that
appears to show a
violation of any provision of this chapter or
any rule
adopted under it. In the absence of bad
faith, any
person who reports information of that nature or who testifies
before the board in any adjudication conducted under
Chapter 119.
of the Revised Code shall not be liable
in damages in a civil
action as a result of the report or
testimony. Each
complaint or
allegation of a violation received by the
board shall be assigned
a case number and shall be recorded by
the board. (2) Investigations of alleged violations of this chapter or
any rule
adopted under it shall
be supervised by the supervising
member elected by the board in
accordance with section 4731.02 of
the Revised Code and by the
secretary as provided in section
4731.39 of the Revised Code. The president
may designate another
member of the board to
supervise the investigation in place of the
supervising member. No member of
the board who supervises the
investigation of a case
shall participate in further adjudication
of the case. (3) In investigating a possible violation of
this chapter or
any rule adopted
under this chapter, the board
may administer
oaths, order the taking of depositions, issue
subpoenas, and
compel the attendance of witnesses and production
of books,
accounts, papers, records, documents, and testimony, except
that a
subpoena for patient record information shall not be issued
without
consultation with the attorney general's office and
approval of
the secretary and supervising member
of the board.
Before issuance of a
subpoena for patient record information, the
secretary and supervising member shall
determine
whether there is
probable cause to believe that the complaint filed alleges a
violation of this chapter or any rule adopted under it and that
the records
sought are relevant
to the alleged violation and
material to the investigation.
The subpoena may apply only to
records that cover a
reasonable period of time surrounding the
alleged violation. On failure to comply with any subpoena
issued by the board
and after reasonable notice to the person
being subpoenaed, the
board may move for an order compelling the
production of persons
or records pursuant to the Rules of Civil
Procedure. A subpoena issued by the board may be served by a sheriff,
the sheriff's deputy, or a board employee designated by the
board.
Service of a subpoena issued by the board may be
made by
delivering a copy of the subpoena to the
person named therein,
reading it to the person, or leaving it at
the person's usual
place of residence. When the person being
served is a person
whose practice is authorized by this chapter,
service of the
subpoena may be made by certified mail,
restricted delivery,
return receipt requested, and the subpoena
shall be deemed served
on the date delivery is made or the date
the person refuses to
accept delivery. A sheriff's deputy who serves a subpoena shall receive the
same fees as a
sheriff. Each witness who
appears before the board
in
obedience to a subpoena shall receive the fees
and mileage
provided for witnesses in civil cases in the courts
of common
pleas. (4) All hearings and investigations of the board shall be
considered civil actions for the purposes of section 2305.252 of
the Revised Code. (5) Information received by the board pursuant to an
investigation is confidential and not subject to discovery in any
civil
action. The board shall conduct all investigations and proceedings
in
a manner that protects the
confidentiality of patients and persons
who file complaints with the
board. The
board shall not make
public the names or any other identifying
information about
patients or complainants unless proper consent is
given or, in the
case of a patient, a
waiver of the patient privilege exists under
division (B) of
section 2317.02 of the Revised Code, except that
consent
or a waiver of that nature is not required if the board
possesses reliable and
substantial evidence that no bona fide
physician-patient
relationship exists. The board may
share any information it receives pursuant to
an investigation, including
patient records and patient record
information, with law
enforcement agencies, other licensing
boards, and other
governmental
agencies that are prosecuting,
adjudicating, or investigating alleged
violations of statutes or
administrative rules. An agency
or board that receives the
information shall comply with the same
requirements regarding
confidentiality as those with which the state medical
board must
comply, notwithstanding any conflicting provision
of the Revised
Code or procedure
of the agency or board that applies when it is
dealing with
other information in its possession. In a judicial
proceeding,
the information
may
be admitted into evidence only in
accordance with
the Rules of Evidence, but the court shall require
that appropriate measures are taken to ensure that
confidentiality
is maintained with respect to any part of the information that
contains names or other identifying information about patients or
complainants
whose confidentiality was protected by the state
medical board when the
information was in the board's possession.
Measures to ensure confidentiality
that may be taken by the court
include sealing its records or deleting
specific information
from
its records. (6) On a quarterly basis, the board shall prepare a report
that documents the disposition of all cases during the preceding
three months. The report shall contain the following information
for each case with which the board has completed its activities: (a) The case number assigned to the complaint or alleged
violation; (b) The type of certificate to practice, if
any, held by the
individual against whom the complaint is
directed; (c) A description of the allegations contained in the
complaint; (d) The disposition of the case. The report shall state how many cases are still pending
and
shall be prepared in a manner that
protects the identity
of each
person involved in each case. The report shall be a
public record
under section 149.43 of the Revised Code. (G) If the secretary and supervising member determine that
there is clear and convincing evidence that
an individual has
violated division (B) of this section and that the
individual's
continued practice presents a
danger of
immediate and serious harm
to the public, they may recommend that
the board suspend the
individual's
certificate to practice without a
prior hearing.
Written allegations shall be prepared for consideration by the
board. The board, upon review of those allegations and by an
affirmative vote
of not fewer than six of its members, excluding
the secretary and
supervising member, may suspend a certificate
without a prior
hearing. A telephone conference call may be
utilized for
reviewing the allegations and taking the vote on the
summary suspension. The board shall issue a written order of suspension by
certified mail or in person in accordance with section 119.07 of
the Revised Code. The order shall not be subject to
suspension
by
the court during pendency of any appeal filed under section
119.12
of the Revised Code. If the individual
subject to the summary
suspension requests
an adjudicatory hearing by the board, the date
set for the
hearing shall be within fifteen days, but not earlier
than seven
days, after the individual
requests the hearing,
unless
otherwise agreed to by both the board and the individual. Any summary suspension imposed under this division shall
remain in effect, unless reversed on appeal, until a final
adjudicative order issued by the board pursuant to this section
and Chapter 119. of the Revised Code becomes effective. The
board
shall issue its final adjudicative order within sixty days
after
completion of its hearing. A failure to issue the order
within
sixty days shall result in dissolution of the summary
suspension
order but shall not invalidate any subsequent, final
adjudicative
order. (H) If the board takes action under division
(B)(9), (11),
or (13) of this section and the judicial
finding of guilt, guilty
plea, or judicial finding of
eligibility for intervention in lieu
of conviction is
overturned on appeal,
upon
exhaustion of the
criminal appeal, a petition for reconsideration
of the order may
be filed with the board along with appropriate
court documents.
Upon receipt of a petition of that
nature and supporting court
documents, the board shall reinstate the
individual's certificate
to practice. The
board may then hold an adjudication under
Chapter 119. of the Revised Code to
determine whether the
individual
committed
the act in question. Notice of an
opportunity for a hearing
shall be given in accordance with
Chapter 119. of the Revised Code. If the
board finds, pursuant to
an adjudication held under this division,
that the individual
committed
the act or if
no hearing is requested, the board may
order any of the sanctions
identified under division (B) of this
section. (I) The certificate to practice issued to an individual
under
this chapter and the individual's practice in this
state are
automatically suspended as of the date the individual pleads
guilty to, is found by a judge
or jury to be guilty of, or is
subject to a judicial
finding of eligibility for intervention in
lieu of conviction in this state
or treatment or intervention in
lieu of conviction in another
jurisdiction for
any of the
following
criminal offenses in this state or a
substantially
equivalent criminal offense in another jurisdiction: aggravated
murder, murder, voluntary
manslaughter, felonious assault,
kidnapping, rape, sexual
battery, gross sexual imposition,
aggravated arson, aggravated
robbery, or aggravated burglary.
Continued
practice after suspension shall be considered practicing
without a certificate. The board shall notify the
individual subject to the
suspension by certified mail or in person in
accordance with
section 119.07 of the Revised Code. If an
individual whose
certificate is suspended under this
division fails to make a
timely request for an adjudication under
Chapter 119. of the
Revised Code,
the board shall enter a final order permanently
revoking the
individual's certificate to practice.
(J) If the board is required by
Chapter 119. of the Revised
Code to give notice of an
opportunity for a hearing and if the
individual subject to the notice
does not timely request a
hearing
in accordance with section
119.07 of the Revised Code, the board
is not required
to hold a hearing, but may adopt, by an
affirmative vote of
not fewer than
six of its members, a final
order that contains the board's
findings. In that final order,
the board may order any of the
sanctions identified under division
(A) or (B) of this section. (K) Any action taken by the board under division (B) of
this
section resulting in a suspension from practice shall be
accompanied by a written statement of the conditions under which
the individual's certificate to practice may be
reinstated. The
board
shall adopt rules governing conditions to be imposed for
reinstatement. Reinstatement of a certificate suspended pursuant
to division (B) of this section requires an affirmative vote of
not fewer than six members of the board. (L) When the board
refuses to grant a certificate to an
applicant,
revokes an individual's
certificate to practice,
refuses to register an applicant, or
refuses to reinstate an
individual's certificate to practice,
the board may specify that
its action is permanent. An
individual subject to a permanent
action taken by the board is
forever thereafter ineligible to hold
a certificate to practice
and the board shall not accept an
application for reinstatement of the
certificate or for issuance
of a new certificate. (M) Notwithstanding any other provision of the Revised
Code,
all of the following apply: (1) The surrender of a certificate issued under this
chapter
shall not be effective
unless or until accepted by the board.
Reinstatement of a
certificate surrendered to the board requires
an affirmative vote
of not fewer than six members of the board. (2) An application for a certificate made
under the
provisions of this chapter
may not be withdrawn without approval
of the board. (3) Failure by an individual to renew a certificate
of
registration in accordance with this chapter shall not remove or
limit the
board's
jurisdiction to take any disciplinary action
under this section
against the individual. (N) Sanctions shall not be imposed under division
(B)(28) of
this section against any person who
waives deductibles and
copayments as follows: (1) In compliance with the health benefit plan that
expressly allows such a practice. Waiver of the deductibles or
copayments shall be made only with the full knowledge and consent
of
the plan purchaser, payer, and third-party administrator.
Documentation of
the consent shall be made available to the board
upon request. (2) For professional services rendered to any other person
authorized to practice pursuant to this chapter,
to the extent
allowed by this
chapter and rules adopted by the board. (O) Under the board's investigative duties described in
this
section and subject to division (F) of this section, the
board
shall
develop and implement a quality intervention program
designed to improve
through remedial
education the clinical and
communication skills of individuals authorized
under this chapter
to practice medicine and surgery, osteopathic medicine and
surgery, and podiatric medicine and surgery. In
developing and
implementing the quality intervention program, the board may do
all of the following: (1) Offer in appropriate cases as determined by the board an
educational
and assessment program pursuant to an investigation
the
board conducts under this section; (2) Select providers of educational and assessment services,
including a
quality intervention program panel of case reviewers; (3) Make referrals to educational and
assessment service
providers and
approve individual educational programs recommended
by those providers. The
board shall monitor the progress of each
individual
undertaking a recommended individual educational
program. (4) Determine what constitutes successful completion of an
individual educational program and require further monitoring of
the
individual who completed the program or other
action that the
board determines to be appropriate; (5) Adopt rules in accordance with Chapter 119. of the
Revised Code to
further
implement the quality intervention
program. An individual who participates in an individual
educational
program pursuant
to this division shall pay the financial
obligations arising from that
educational program.
Section 2. That existing sections 1533.18, 1701.76, 1701.82, 1775.14, 2117.06, 2125.02, 2125.04, 2305.01, 2305.03, 2305.10, 2305.113, 2305.234, 2305.25, 2307.011, 2307.23, 2307.29, 2307.60, 2307.71, 2307.75, 2307.80, 2315.01, 2315.21, 2315.32, 2315.33, 2315.34, 2315.36, 2323.51, 2505.02, 3719,81, 4507.07, 4513.263, 4713.02, 4715.42, 4723.01, 4723.03, 4723.28, 4723.43, 4723.44, 4723.48, 4723.482, 4729.01, and 4731.22 and sections Sec. 2315.41. , Sec. 2315.42. , Sec. 2315.43. , Sec. 2315.44. , Sec. 2315.45. , and Sec. 2315.46. 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) The current civil litigation system represents a challenge to the economy of the state of Ohio, which is dependent on business providing essential jobs and creative innovation.
(2) The General Assembly recognizes that a fair system of civil justice strikes an essential balance between the rights of those who have been legitimately harmed and the rights of those who have been unfairly sued.
(3) This state has a rational and legitimate state interest in making certain that Ohio has a fair, predictable system of civil justice that preserves the rights of those who have been harmed by negligent behavior, while curbing the number of frivolous lawsuits, which increases the cost of doing business, threatens Ohio jobs, drives up costs to consumers, and may stifle innovation. The General Assembly bases its findings on this state interest upon the following evidence:
(a) A National Bureau of Economic Research study estimates that states that have adopted abuse reforms have experienced employment growth between eleven and twelve per cent, productivity growth of seven to eight per cent, and total output growth between ten and twenty per cent for liability reducing reforms.
(b) According to a 2002 study from the White House Council of Economic Advisors, the cost of tort litigation is equal to a two and one tenth per cent wage and salary tax, a one and three tenth per cent tax on personal consumption, and a three and one tenth per cent tax on capital investment income.
(c) The 2003 Harris Poll of nine hundred and twenty-eight senior corporate attorneys conducted by the United States Chamber of Commerce's Institute for Legal Reform reports that eight out of ten respondents claim that the litigation environment in a state could affect important business decisions about their company, such as where to locate or do business. In addition, one in four senior attorneys surveyed cited limits on damages as one specific means for state policy makers to improve the litigation environment in their state and promote economic development.
(d) The cost of the United States tort system grew at a record rate in 2001, according to a February 2003 study published by Tillinghast-Towers Perrin. The system, however, failed to return even fifty cents for every dollar to people who were injured. Tillinghast-Towers Perrin also found that fifty-four per cent of the total cost accounted for attorney's fees, both for plaintiffs and defendants, and administration. Only twenty-two per cent of the tort system's cost was used directly to reimburse people for the economic damages associated with injuries and losses they sustain.
(e) The Tillinghast-Towers Perrin study also found that the cost of the United States tort system grew fourteen and three tenths of a per cent in 2001, the highest increase since 1986, greatly exceeding overall economic growth of two and six tenth per cent. As a result, the cost of the United States tort system rose to two hundred and five billion dollars total or seven hundred and twenty-one dollars per citizen, equal to a five per cent tax on wages.
(f) As stated in testimony by Ohio Department of Development Director Bruce Johnson, as a percentage of the gross domestic product, United States tort costs have grown from six tenths of a per cent to two per cent since 1950, about double the percentage that other industrialized nations pay annually. These tort costs put Ohio businesses at a disadvantage vis-a-vis foreign competition and are not helpful to development.
(4)(a) Reform to the punitive damages law in Ohio is urgently needed to restore balance, fairness, and predictability to the civil justice system.
(b) In prohibiting a court from entering judgment for punitive or exemplary damages in excess of the two times the amount of compensatory damages awarded to the plaintiff and, with respect to an individual or small employer that employs not more than one hundred persons or if the employer is classified as being in the manufacturing sector not more than five hundred persons, from entering judgment for punitive or exemplary damages in excess of the lesser of two times the amount of compensatory damages awarded to the plaintiff or ten per cent of the individual's or employer's net worth when the tort was committed up to a maximum of three hundred fifty thousand dollars, the General Assembly finds the following:
(i) Punitive or exemplary damages awarded in tort actions are similar in nature to fines and additional court costs imposed in criminal actions, because punitive or exemplary damages, fines, and additional court costs are designed to punish a tortfeasor for certain wrongful actions or omissions.
(ii) The absence of a statutory ceiling upon recoverable punitive or exemplary damages in tort actions has resulted in occasional multiple awards of punitive or exemplary damages that have no rational connection to the wrongful actions or omissions of the tortfeasor.
(iii) The distinction between small employers and other defendants based on the number of full-time permanent employees distinguishes all other defendants including individuals and nonemployers. This distinction is rationally based on size considering both the economic capacity of an employer to maintain that number of employees and to impact the community at large, as exemplified by the North American Industry Classification System and the United States Small Business Administration's Office of Advocacy.
(c) The limits on punitive or exemplary damages as specified in section 2315.21 of the Revised Code, as amended by this act, are based on guidance recently provided by the United States Supreme Court in State Farm Mutual Insurance v. Campbell (2003), 123 S.Ct. 1513. In determining whether a one hundred and forty-five million dollar award of punitive damages was appropriate, the United States Supreme Court referred to the three guideposts for punitive damages articulated in BMW of North America Inc. v. Gore (1996), 517 U.S. 599: (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages awarded; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. According to the United States Supreme Court, "few awards exceeding a single digit ratio between punitive damages and compensatory damages. . . will satisfy due process." Id. at 31.
(d) The limits on punitive or exemplary damages as specified in section 2315.21 of the Revised Code, as amended by this act, are based on testimony asking members of the General Assembly to recognize the economic impact of occasional multiple punitive damages awards and stating that a number of other states have imposed limits on punitive or exemplary damage awards.
(5)(a) Statutes of repose are vital instruments that provide time limits, closure, and peace of mind to potential parties of lawsuits.
(b) Forty-seven other states have adopted statutes of repose to protect architects, engineers, and constructors of improvements to real property from lawsuits arising after a specific number of years after completion of an improvement to real property. The General Assembly recognizes that Kentucky, New York, and Ohio are the only three states that do not have a statute of repose. The General Assembly also acknowledges that Ohio stands by itself, due to the fact that both Kentucky and New York have a rebuttable presumption that exists and only if a plaintiff can overcome that presumption can a claim continue.
(c) As stated in testimony by Jack Pottmeyer, architect and managing principal of MKC Associates, Inc., this unlimited liability forces professionals to maintain records in perpetuity, because those professionals cannot reasonably predict when a record from fifteen or twenty years earlier may become the subject of a civil action. Those actions occur despite the fact that, over the course of many years, owners of the property or those responsible for its maintenance could make modifications or other substantial changes that would significantly change the intent or scope of the original design of the property designed by an architectural firm. The problem is compounded by the fact that professional liability insurance for architects and engineers is offered by relatively few insurance carriers and is written on what is known as a "claims made basis," meaning a policy must be in effect when the claim is made, not at the time of the service, in order for the claim to be paid. Without a statute of repose, professional liability insurance must be maintained forever to ensure coverage of any potential claim on previous services. These minimum annual premiums can add up, averaging between three thousand five hundred dollars and five thousand dollars annually, which is especially burdensome for a retired design professional.
(6)(a) Noneconomic damages include such things as pain and suffering, emotional distress, and loss of consortium or companionship, which do not involve an economic loss and have, therefore, no precise economic value. Punitive damages are intended to punish a defendant for wrongful conduct. Pain and suffering awards are distinct from punitive damages. Pain and suffering awards are intended to compensate a person for the person's loss. They are not intended to punish a defendant for wrongful conduct. (b) The judicial analysis of compensatory damages representing noneconomic loss, as specified in section 2315.19 of the Revised Code, are based on testimony asking members of the General Assembly to recognize these distinctions. (c) With respect to noneconomic loss for either: (1) permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system; or (2) permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life-sustaining activities, the General Assembly recognizes that evidence that juries may consider in awarding pain and suffering damages for these types of injuries is different from evidence courts may consider for punitive damages. For example, the amount of a plaintiff's pain and suffering is not relevant to a decision on wrongdoing, and the degree of the defendant's wrongdoing is not relevant to the amount of pain and suffering. (d) While pain and suffering awards are inherently subjective, it is believed that this inflation of noneconomic damages is partially due to the improper consideration of evidence of wrongdoing in assessing pain and suffering damages. (e) Inflated damage awards create an improper resolution of civil justice claims. The increased and improper cost of litigation and resulting rise in insurance premiums is passed on to the general public through higher prices for products and services. (f) Therefore, with respect to the types of injuries articulated in division (A)(6)(c) of this section, the General Assembly finds that courts should provide juries with clear instructions about the purpose of pain and suffering damages. Courts should instruct juries that evidence of misconduct is not to be considered in deciding compensation for noneconomic damages for those types of injuries. Rather, it is to be considered solely for the purpose of deciding punitive damage awards. In cases in which punitive damages are requested, defendants should have the right to request bifurcation of a trial to ensure that evidence of misconduct is not inappropriately considered by the jury in its determination of liability and compensatory damages. As additional protection, trial and appellate courts should rigorously review pain and suffering awards to ensure that they properly serve compensatory purposes and are not excessive. (7)(a) The collateral source rule prohibits a defendant from introducing evidence that the plaintiff received any benefits from sources outside the dispute.
(b) Twenty-one states have modified or abolished the collateral source rule.
(B) In enacting section 2305.131 of the Revised Code
in this act, it is the intent of the General Assembly to do all
of the following: (1) To declare that the ten-year statute of repose prescribed
by section 2305.131 of the Revised Code, as enacted by this
act, is a specific provision intended to promote a greater
interest than the interest underlying the general four-year
statute of limitations prescribed by section 2305.09 of the Revised Code, the
general two-year statute of limitations prescribed by section
2305.10 of the Revised Code, and other general statutes of
limitation prescribed by the Revised Code; (2) To recognize that, subsequent to the completion of the
construction of an improvement to real property, all of the
following generally apply to the persons who provided services
for the improvement or who furnished the design, planning,
supervision of construction, or construction of the improvement: (a) They lack control over the improvement, the ability to make
determinations with respect to the improvement, and the
opportunity or responsibility to maintain or undertake the
maintenance of the improvement. (b) They lack control over other forces, uses, and intervening
causes that may cause stress, strain, or wear and tear to the
improvement. (c) They have no right or opportunity to be made aware of, to
evaluate the effect of, or to take action to overcome the effect
of the forces, uses, and intervening causes described in
division (E)(5)(b) of this section. (3) To recognize that, more than ten years after the completion
of the construction of an improvement to real property, the
availability of relevant evidence pertaining to the improvement
and the availability of witnesses knowledgeable with respect to
the improvement is problematic; (4) To recognize that maintaining records and other
documentation pertaining to services provided for an improvement
to real property or the design, planning, supervision of
construction, or construction of an improvement to real property
for a reasonable period of time is appropriate and to recognize
that, because the useful life of an improvement to real property
may be substantially longer than ten years after the completion
of the construction of the improvement, it is an unacceptable
burden to require the maintenance of those types of records and
other documentation for a period in excess of ten years after
that completion; (5) To declare that section 2305.131 of the Revised Code,
as enacted by this act, strikes a rational balance between the
rights of prospective claimants and the rights of design
professionals, construction contractors, and construction
subcontractors and to declare that the ten-year statute of
repose prescribed in that section is a rational period of repose
intended to preclude the pitfalls of stale litigation but not to
affect civil actions against those in actual control and
possession of an improvement to real property at the time that a
defective and unsafe condition of that improvement causes an
injury to real or personal property, bodily injury, or wrongful
death. (C) In enacting division (D)(2) of section 2125.02 and division (C) of
section 2305.10 of the Revised Code in this act, it is the intent of the
General Assembly to do all of the following: (1) To declare that the ten-year statute of repose prescribed by division
(D)(2) of section 2125.02 and division (C) of section 2305.10 of the
Revised Code, as enacted by this act, are specific provisions intended to
promote a greater interest than the interest underlying the general four-year
statute of limitations prescribed by section 2305.09 of the Revised Code, the
general two-year statutes of limitations prescribed by sections 2125.02 and
2305.10 of the
Revised Code, and other general statutes of limitations prescribed by the
Revised Code; (2) To declare that, subject to the two-year exceptions prescribed in
division (D)(2)(d) of section 2125.02 and in division (C)(4) of section
2305.10 of the Revised Code, the ten-year statutes of repose shall serve as a limitation upon the commencement of a civil action
in accordance with an otherwise applicable statute of limitations prescribed
by the Revised Code; (3) To recognize that subsequent to the delivery of a product, the
manufacturer or supplier lacks control over the product, over the uses made of
the product, and over the conditions under which the product is used; (4) To recognize that under the circumstances described in division (C)(3) of
this section, it is more appropriate for the party or parties who have had
control over the product during the intervening time period to be responsible
for any harm caused by the product; (5) To recognize that, more than ten years after a product has been
delivered, it is very difficult for a manufacturer or supplier to locate
reliable evidence and witnesses regarding the design, production, or marketing
of the product, thus severely disadvantaging manufacturers or suppliers in
their efforts to defend actions based on a product liability claim; (6) To recognize the inappropriateness of applying current legal and
technological standards to products manufactured many years prior to the
commencement of an action based on a product liability claim; (7) To recognize that a statute of repose for product liability claims would
enhance the competitiveness of Ohio manufacturers by reducing their exposure
to disruptive and protracted liability with respect to products long out of
their control, by increasing finality in commercial transactions, and by
allowing manufacturers to conduct their affairs with increased certainty; (8) To declare that division (D)(2) of section 2125.02 and division
(C) of section 2305.10 of the Revised Code, as enacted by this act, strike a
rational balance between the rights of prospective claimants and the rights of
product manufacturers and suppliers and to declare that the ten-year
statutes of repose prescribed in those sections are rational periods of repose
intended to preclude the problems of stale litigation but not to affect civil
actions against those in actual control and possession of a product at the
time that the product causes an injury to real or personal property, bodily
injury, or wrongful death; (D) The General Assembly declares its intent that the amendment made by this act to section 2307.71 of the Revised Code is intended to supersede the holding of the Ohio Supreme Court in Carrel v. Allied Products Corp. (1997), 78 Ohio St.3d 284, that the common law product liability cause of action of negligent design survives the enactment of the Ohio Product Liability Act, sections 2307.71 to 2307.80 of the Revised Code, and to abrogate all common law product liability causes of action. (E) 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 Brennaman v. R.M.I. Co. (1994), 70 Ohio St. 3d 460. Section 4. (A) 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. (B) The General Assembly hereby requests the Supreme Court to adopt a "Legal Consumer's Bill of Rights" that would substantially conform with the following language:
Each attorney who is licensed to practice law in this state shall append to every written retainer agreement or contract for legal services a legal consumer's bill of rights that shall be substantially in the following form:
"LEGAL CONSUMER'S BILL OF RIGHTS
Consumers of legal services have both rights and responsibilities in the resolution of legal disputes. Lawyers, as well, have duties and rights related to the clients they represent. This listing is designed to provide consumers with an overview of their rights and responsibilities in relating to their lawyers and in the resolution of their legal matters.
Client rights and lawyer duties:
You can expect to be treated with courtesy and consideration by your lawyer and by others under the supervision of your lawyer involved in your legal matter.
You can expect competent and diligent representation by your lawyer, in accord with accepted aspirational standards of professionalism.
You can expect your lawyer's independent professional judgment and loyalty uncompromised by conflicts of interest. Your lawyer will maintain accurate records and protect any funds you provide regarding your legal matter.
You can expect your lawyer to fully disclose fee arrangements and other costs at the onset of your relationship, and to provide a written fee agreement or contingency fee contract.
You can expect to have your questions answered and telephone calls returned by your lawyer in a reasonable time in accordance with professional standards.
You can expect your lawyer to keep you informed about the progress of your legal matter, to disclose alternative approaches to resolving your legal matter, and to have you participate meaningfully in the resolution process.
You can expect to have your lawyer respect your legitimate objectives and to include you in making settlement decisions regarding your legal dispute.
You can expect to have your lawyer honor the attorney-client privilege, protect your right to privacy and preserve your secrets and confidences.
You can expect ethical conduct from your lawyer in accord with the Code of Professional Responsibility.
You may not be refused representation based upon race, creed, color, religion, sex, age, national origin or disability.
You may file a grievance with the certified grievance committee of your local bar association or the Ohio State Bar Association or with the Board of Commissioners on Grievances and Discipline of the Supreme Court if you are not satisfied with the legal services you have retained. The committee and the board include nonattorneys as members. The Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio has the authority to discipline and to impose sanctions on attorneys in Ohio.
Your lawyer can expect you to be truthful and to have you provide a full disclosure of pertinent information needed to handle your legal matter.
Your lawyer can expect you to provide timely responses to reasonable requests for information, and to be on time for legal proceedings. Your lawyer can expect you to pay your legal bills in a timely manner.
Just as you expect to be treated with respect and courtesy, your lawyer can expect you to set appointments in advance to meet with your lawyer, to be responsible for making reasonable requests of your lawyer's time, and to be treated respectfully.
Your lawyers can expect you to communicate in a timely manner about your legal matter, or if you are unhappy with the way your matter is being handled. There is a grievance procedure in place to handle disputes with your lawyer that you are not able to resolve on your own.
Your lawyer can expect not to be asked to engage in behavior that is unethical, inappropriate, unprofessional, or illegal." (C) The General Assembly hereby requests the Supreme Court to amend Ohio Rules of Civil Procedure Rule 68 to conform to Federal Rules of Civil Procedure Rule 68.
Section 5. 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 6. 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 7. Section 2505.02 of the Revised Code is presented in
this act as a composite of the section as amended by Am. Sub. H.B. 292, Am. Sub. H.B. 342, and Sub. S.B. 187 of
the 125th 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. Section 8. Section 2323.44 of the Revised Code, as enacted by this act, shall take effect January 1, 2006. Section 9. This act's amendment of division (A)(7) of section 4713.02 of the Revised Code does not affect the term of office of any person serving as a member of the State Board of Cosmetology on the effective date of this act. Section 10. This act's amendment of division (B)(24) of section 4723.28 of the Revised Code does not remove the authority of the Board of Nursing to conduct investigations and take disciplinary actions regarding a person who engaged in the activities specified in that division while participating in one of the advanced practice nurse pilot programs operated pursuant to sections 4723.52 to 4723.60 of the Revised Code prior to January 17, 2004, the effective date of the repeal of those sections, as provided in Section 3 of Am. Sub. H.B. 241 of the 123rd General Assembly. Section 11. This act's amendment of division (B)(30) of section 4731.22 of the Revised Code does not remove the State Medical Board's authority to conduct investigations and take disciplinary actions regarding the failure of a collaborating physician to fulfill the responsibilities agreed to by the physician and a person participating in one of the advanced practice nurse pilot programs operated pursuant to sections 4723.52 to 4723.60 of the Revised Code prior to January 17, 2004, the effective date of the repeal of those sections, as provided in Section 3 of Am. Sub. H.B. 241 of the 123rd General Assembly. Section 12. Section 4723.28 of the Revised Code is presented in
this act as a composite of the section as amended by both Am. Sub. H.B. 474 and Sub. S.B. 179 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. Section 13. Section 4731.22 of the Revised Code is presented in
this act as a composite of the section as amended by both Am. Sub. H.B. 474 and Sub. S.B. 179 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.
Section 14. For any cause of action that arises before the effective date of this act, the provisions set forth in sections 1701.76, 1701.82, and 2307.97 of the Revised Code, as amended or enacted in Sections 1 and 2 of this act, are to be applied unless the court that has jurisdiction over the case finds both of the following:
(A) That a substantive right of a party to the case has been impaired;
(B) That the impairment is otherwise in violation of Section 28 of Article II, Ohio Constitution.
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