To amend section 2317.43 and to enact sections 2305.27 and 2323.40 of the Revised Code to provide that certain statements and communications made regarding an unanticipated outcome of medical care are inadmissible as evidence, to require a plaintiff in a medical claim to establish that the defendant's act or omission is a deviation from the required standard of medical care and the direct and proximate cause of the alleged injury, death, or loss, to provide that any loss of a chance of recovery or survival by itself is not an injury, death, or loss for which damages may be recovered, and to grant civil immunity to a health care facility for injury, death, or loss caused by a health care practitioner who is not an employee or agent of, and provides medical services at, the facility.

Section 1. That section 2317.43 be amended and sections 2305.27 and 2323.40 of the Revised Code be enacted to read as follows:

Sec. 2305.27.  (A) As used in this section:

(1) "Health care facility or location" has the same meaning as in section 2305.234 of the Revised Code.

(2) "Health care practitioner" has the same meaning as in division (B)(5) of section 2317.02 of the Revised Code.

(3) "Independent medical practitioner" means any health care practitioner who is not an actual employee or agent of the health care facility or location in which the medical services are being provided.

(4) "Medical claim" has the same meaning as in section 2305.113 of the Revised Code.

(B) A health care facility or location is not liable in damages for injury, death, or loss to person in a civil action asserting a medical claim if the injury, death, or loss to person is the result of an act or omission of a health care practitioner who is an independent medical practitioner and the health care facility or location has provided notice in accordance with divisions (C) and (D) of this section that the health care practitioner is or could be an independent medical practitioner.

(C) A health care facility or location is considered as having provided the notice under division (B) of this section if the health care facility or location either provided a copy of the notice in writing to the patient or the patient's representative prior to providing the medical services at issue or the health care facility or location has posted the notice in all of the regular and established admitting areas of the facility or location. In the case of an emergency and in the absence of posting of the notice as provided in this division, a health care facility or location shall provide a copy of the notice in writing to the patient or the patient's representative as soon as practicable under the circumstances.

(D) The notice under division (B) of this section shall be in substantially the following form:

Not all of the health care practitioners who are providing your medical services while you are here are employed by or agents of [name of health care facility or location]. If you want to determine whether a health care practitioner is an employee or agent of [name of health care facility or location], contact [name and phone number for contact person]. In the absence of confirmation that a health care practitioner is an employee or agent of [name of health care facility or location], you should assume that the practitioner is not an employee or agent of [name of health care facility or location].

[Name of health care facility or location] is not legally responsible for the acts or omissions of health care practitioners who are not employed by or agents of [name of health care facility or location]."

(E) This section applies only to a health care facility or location if it requires independent medical practitioners, as a condition of their ability to provide medical services at the health care facility or location, to maintain a minimum of one million dollars in professional liability coverage.

(F) This section does not apply to any action brought against the state in the court of claims, including, but not limited to, any action in which a state university or college is a defendant.

(G) This section does not preclude liability for damages for injury, death, or loss to person under any other provision of the Revised Code or federal law.

(H)(1) This section does not create a new cause of action or substantive legal right against a 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 facility or location may be entitled in connection with medical services provided by the facility or location.

Sec. 2317.43.  (A) In any civil action brought by an alleged victim of an unanticipated outcome of medical care or in any arbitration proceeding related to such a civil action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, error, fault, or a general sense of benevolence that are made by a health care provider or, an employee of a health care provider, or a representative of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim, and that relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

(B) In any civil action brought by an alleged victim of an unanticipated outcome of medical care, in any arbitration proceeding related to such a civil action, or in any other civil proceeding, any communications made by a health care provider, an employee of a health care provider, or a representative of a health care provider to the alleged victim, a relative or acquaintance of the alleged victim, or a representative of the alleged victim following an unanticipated outcome and made as part of a review conducted in good faith by the health care provider, an employee of the health care provider, or a representative of the health care provider into the cause of or reasons for an unanticipated outcome, are inadmissible as evidence unless the communications are recorded in the medical record of the alleged victim. Nothing in this section requires a review to be conducted.

(C) For purposes of this section, unless the context otherwise requires:

(1) "Health care provider" has the same meaning as in division (B)(5) of section 2317.02 of the Revised Code.

(2) "Relative" means a victim's spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half brother, half sister, or spouse's parents. The term includes said relationships that are created as a result of adoption. In addition, "relative" includes any person who has a family-type relationship with a victim.

(3) "Representative of an alleged victim" means a legal guardian, attorney, person designated to make decisions on behalf of a patient under a medical power of attorney, or any person recognized in law or custom as a patient's agent.

(4) "Representative of a health care provider" means an attorney, health care provider, employee of a health care provider, or other person designated by a health care provider or an employee of a health care provider to participate in a review conducted by a health care provider or employee of a health care provider.

(5) "Review" means the policy, procedures, and activities undertaken by or at the direction of a health care provider, employee of a health care provider, or person designated by a health care provider or employee of a health care provider with the purpose of determining the cause of or reasons for an unanticipated outcome, and initiated and completed during the first forty-five days following the occurrence or discovery of an unanticipated outcome. A review may be extended for a longer period if necessary upon written notice to the patient, relative of the patient, or representative of the patient.

(6) "Unanticipated outcome" means the outcome of a medical treatment or procedure that differs from an expected result or any outcome that is adverse or not satisfactory to the patient.

Sec. 2323.40. (A) As used in this section, "medical claim" has the same meaning as in section 2305.113 of the Revised Code.

(B) In any civil action upon a medical claim, in order for the plaintiff to recover any damages resulting from the alleged injury, death, or loss to person, the plaintiff shall establish by a preponderance of the evidence that the act or omission of the defendant in rendering medical care or treatment is a deviation from the required standard of medical care or treatment and the direct and proximate cause of the injury, death, or loss to person. Direct and proximate cause of the injury, death, or loss to person is established by evidence showing that it is more likely than not that the defendant's act or omission was a cause in fact of the injury, death, or loss to person. Any loss or diminution of a chance of recovery or survival by itself is not an injury, death, or loss to person for which damages may be recovered.

Section 2.  That existing section 2317.43 of the Revised Code is hereby repealed.

Section 3. The General Assembly finds that in civil actions based upon a medical claim, the negligent act or omission of the responsible party must be shown to have been the direct and proximate cause of the injury, death, or loss to person complained of. The General Assembly also finds that the application of the so-called loss of chance doctrine in those actions improperly alters or eliminates the requirement of direct and proximate causation. Therefore, the Ohio Supreme Court decision adopting the loss of chance doctrine in Roberts v. Ohio Permanente Medical Group, Inc. (1996), 76 Ohio St.3d 483, is hereby abrogated.