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H. B. No. 103 As IntroducedAs Introduced
130th General Assembly | Regular Session | 2013-2014 |
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Cosponsors:
Representatives Becker, Buchy, Conditt, Grossman, Hottinger, Pillich, Stebelton, Wachtmann
A BILL
To amend section 2305.113 and to enact section
2323.451 of the Revised Code to specify the manner
of sending a notice of intent to file a medical
claim and to provide a procedure for the discovery
of other potential defendants within a specified
period after the filing of a medical claim.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2305.113 be amended and section
2323.451 of the Revised Code be enacted to read as follows:
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) A claimant who allegedly possesses a medical claim and
who intends to give to the person who is the subject of that claim
the written notice described in division (B)(1) of this section
shall send the notice by certified mail, return receipt requested,
addressed to any of the following:
(a) The person's residence;
(b) The person's professional practice;
(c) The person's employer;
(d) The address of the person on file with the state medical
board or other appropriate agency that issued the person's
professional license.
(3) 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 registered 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 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 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 registered nurse" means any certified
nurse practitioner, clinical nurse specialist, certified
registered nurse anesthetist, or certified nurse-midwife who holds
a certificate of authority issued by the board of nursing under
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
board of nursing pursuant to Chapter 4723. of the Revised Code.
(18) "Physician assistant" means any person who holds a valid
certificate to practice 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. 2323.451. (A) As used in this section, "medical claim"
has the same meaning as in section 2305.113 of the Revised Code.
(B) At the time of filing a complaint asserting a medical
claim, the plaintiff shall file with the complaint, pursuant to
rule 10(D) of the Rules of Civil Procedure, an affidavit of merit
relative to each defendant named in the complaint or a motion to
extend the period of time to file an affidavit of merit.
(C) The plaintiff may conduct discovery as permitted by the
Rules of Civil Procedure. Additionally, for a period of one
hundred eighty days following the filing of a complaint asserting
a medical claim, the plaintiff may seek to discover the existence
or identity of any other potential medical claims or defendants
that are not included or named in the complaint. Any defendant
named in the complaint shall provide the discovery under this
division in accordance with the Rules of Civil Procedure.
(D) Within one hundred eighty days following the filing of a
complaint asserting a medical claim, the plaintiff, in an
amendment to the complaint pursuant to rule 15 of the Rules of
Civil Procedure, may join in the action any additional medical
claim or defendant if the period of limitation applicable to that
additional medical claim or defendant had not expired prior to the
date the original complaint was filed. The plaintiff shall file an
affidavit of merit supporting the joinder of the additional
defendant or a motion to extend the period of time to file an
affidavit of merit pursuant to rule 10(D) of the Rules of Civil
Procedure.
(E) If, after more than one hundred eighty days following the
filing of a complaint asserting a medical claim, the plaintiff
first discovers the existence or identity of a potential medical
claim or defendant that is not included or named in the complaint,
the period of limitation for a medical claim against that
potential defendant commences on the earlier of the date the
plaintiff discovers the existence of the medical claim and
identity of the potential defendant or the date upon which the
plaintiff in the exercise of reasonable care and diligence should
have discovered the alleged basis of the medical claim and the
identity of the person against whom the medical claim could have
been asserted.
(F) Divisions (D) and (E) of this section do not modify or
affect and shall not be construed as modifying or affecting any
provision of the Revised Code or rule of common law that applies
to the commencement of the period of limitation for a medical
claim upon a cause of action that arises when the plaintiff
discovers, or in the exercise of reasonable care and diligence,
should have discovered the alleged basis of the medical claim and
the identity of the person against whom the medical claim may be
asserted.
(G) After the expiration of one hundred eighty days following
the filing of a complaint asserting a medical claim, the plaintiff
shall not join any additional medical claim or defendant to the
action unless either of the following applies:
(1) The medical claim is for wrongful death, and the period
of limitation for the claim under section 2125.02 of the Revised
Code has not expired.
(2) The existence and identification of the additional
medical claim or defendant is discovered in the exercise of
reasonable care and diligence under division (E) of this section.
Section 2. That existing section 2305.113 of the Revised
Code is hereby repealed.
Section 3. (A) Section 2323.451 of the Revised Code, as
enacted by this act, applies to a civil action that is based upon
a medical claim and that is filed on or after the effective date
of this act.
(B) As used in division (A) of this section, "medical claim"
has the same meaning as in section 2305.113 of the Revised Code.
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