130th Ohio General Assembly
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H. B. No. 103  As Introduced
As Introduced

130th General Assembly
Regular Session
2013-2014
H. B. No. 103


Representative Huffman 

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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