130th Ohio General Assembly
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Sub. H. B. No. 276  As Reported by the House Judiciary Committee
As Reported by the House Judiciary Committee

130th General Assembly
Regular Session
2013-2014
Sub. H. B. No. 276


Representative Stautberg 

Cosponsors: Representatives Becker, Blair, Blessing, Hackett, Hottinger, Johnson, Scherer, Sears, Smith 



A BILL
To amend section 2317.43 and to enact sections 2317.44 and 2317.45 of the Revised Code to provide that certain statements and communications made regarding an unanticipated outcome of medical care, the development or implementation of standards under certain federal laws, and an insurer's reimbursement policies and determination regarding health care services are inadmissible as evidence in a medical claim.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2317.43 be amended and sections 2317.44 and 2317.45 of the Revised Code be enacted to read as follows:
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. 2317.44. (A) As used in this section:
(1) "Health care provider" means any person or entity against whom a medical claim may be asserted in a civil action.
(2) "Medical claim" has the same meaning as in section 2305.113 of the Revised Code.
(B) Any guideline, regulation, or other standard under any provision of the "Patient Protection and Affordable Care Act," Pub. L. 111-148, 124 Stat. 119 (2010), 42 U.S.C. 18001 et seq., as amended, Title XVIII of the "Social Security Act," 42 U.S.C. 1395 et seq., as amended, and Title XIX of the "Social Security Act," 42 U.S.C. 1396 et seq., as amended, shall not be construed to establish the standard of care or duty of care owed by a health care provider to a patient in a medical claim and is not admissible as evidence for or against any party in any civil action based upon the medical claim or in any civil or administrative action involving the licensing or licensure status of the health care provider.
Sec. 2317.45. (A) As used in this section:
(1) "Health care provider" means any person or entity against whom a medical claim may be asserted in a civil action.
(2) "Insurer" means any public or private entity doing or authorized to do any insurance business in this state. "Insurer" includes a self-insuring employer and the United States centers for medicare and medicaid services.
(3) "Medical claim" has the same meaning as in section 2305.113 of the Revised Code.
(4) "Reimbursement determination" means an insurer's determination of whether the insurer will reimburse a health care provider for health care services and the amount of that reimbursement.
(5) "Reimbursement policies" means an insurer's policies and procedures governing its decisions regarding the reimbursement of a health care provider for health care services, the method of reimbursement, and the data upon which those policies and procedures are based, including, but not limited to, data from national research groups and other patient safety data.
(B) Any insurer's reimbursement policies or reimbursement determination or regulations issued by the United States centers for medicare and medicaid services or the Ohio department of medicaid regarding the health care services provided to the patient in any civil action based on a medical claim are not admissible as evidence for or against any party in the action and may not be used to establish a standard of care or breach of that standard of care in the action.
Section 2.  That existing section 2317.43 of the Revised Code is hereby repealed.
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