Text of Statute

-- Pre-HB 350 (Tort Reform Act) version of this section.

(A) As used in this section, "medical claim," "dental claim," "optometric claim," and "chiropractic claim" have the same meanings as in division (D) of section 2305.11 of the Revised Code.

(B) A municipal court, county court, or court of common pleas, or the court of claims, shall have jurisdiction to hear and determine an action upon a medical, dental, optometric, or chiropractic claim only if the complaint or other pleading that sets forth the claim is supported by documentation as required by and described in division (C) of this section.

(C)(1) The complaint or other pleading that sets forth a medical, dental, optometric, or chiropractic claim shall be accompanied by one of the following types of supporting documentation:

(a)(i) An affidavit of the claimant's attorney or, if the claimant is not represented by an attorney, of the claimant that states that the affiant has consulted with and reviewed the facts of the matter involved with a physician if a medical claim against a physician is involved, a podiatrist if a medical claim against a podiatrist is involved, a dentist if a dental claim is involved, an optometrist if an optometric claim is involved, a chiropractor if a chiropractic claim is involved, or other consultant with appropriate qualifications to render an opinion, who the affiant reasonably believes is knowledgeable regarding the issues involved in the particular claim and is competent pursuant to the Rules of Evidence to testify on the claim; that after the consultation and review of the facts and relevant medical, dental, optometric, or chiropractic records and other materials, the reviewing physician, dentist, podiatrist, optometrist, chiropractor, or other consultant has determined that there is reasonable cause for the commencement of an action upon the claim against each defendant; and that, on the basis of the review and consultation, the affiant has concluded that there is reasonable cause for the commencement of an action upon the claim against each defendant;

(ii) In addition to the statements required in an affidavit pursuant to division (C)(1)(a)(i) of this section, if an action upon a medical, dental, optometric, or chiropractic claim is based upon a lack of informed consent, the affidavit shall state that, after the consultation involved and a review of the facts and relevant medical, dental, optometric, or chiropractic records and other materials, the reviewing physician, dentist, podiatrist, optometrist, chiropractor, or other consultant has concluded that the defendant in question failed to disclose to and discuss with the patient involved or, if the patient is a minor or under any other disability, the parent or legal representative of the patient involved the material risks and dangers that were inherently and potentially involved in the proposed procedure or therapy, and that some event of which there was a material risk or danger actually occurred and was a proximate cause of the injury, death, or loss to person or property of the patient.

(b) An affidavit of the claimant's attorney or, if the claimant is not represented by an attorney, of the claimant that states both of the following:

(i) The affiant was not able to obtain a consultation with and a review of the facts of the matter involved with a physician, dentist, podiatrist, optometrist, chiropractor, or other consultant as described in division (C)(1)(a) of this section soon enough to timely commence an action upon the medical, dental, optometric, or chiropractic claim;

(ii) The reasons why the affiant was not able to obtain a consultation and review as described in division (C)(1)(a) of this section soon enough to timely commence an action upon the medical, dental, optometric, or chiropractic claim.

(c) An affidavit of the claimant's attorney or, if the claimant is not represented by an attorney, of the claimant that states that the claimant or the claimant's attorney has submitted a written request to the defendant in question for an examination of or the copying of the medical, dental, optometric, or chiropractic records of the claimant or, if different, the patient involved and that the defendant in question has failed to produce those records within sixty days after receipt of that request.

(d) An affidavit of the claimant's attorney or, if the claimant is not represented by an attorney, of the claimant that states that the claimant intends to rely solely on one or more of the following to establish the claimant's claim:

(i) Res ipsa loquitur;

(ii) Failure to remove a foreign object;

(iii) Any other facts that do not require an expert witness to establish the claim.

(2) If an affidavit as described in division (C)(1)(b) or (c) of this section accompanies a complaint or other pleading that sets forth a medical, dental, optometric, or chiropractic claim, then an affidavit in support of that complaint or pleading as described in division (C)(1)(a) of this section shall be filed with the court by the claimant's attorney or, if the claimant is not represented by an attorney, the claimant as follows:

(a) In the case of an affidavit as described in division (C)(1)(b) of this section, within ninety days after the date of the filing of the complaint or other pleading;

(b) In the case of an affidavit as described in division (C)(1)(c) of this section, within ninety days after a receipt of the requested medical, dental, optometric, or chiropractic records.

(3) A municipal court, county court, or court of common pleas, or the court of claims does not have jurisdiction to hear and determine an action upon a medical, dental, optometric, or chiropractic claim and shall dismiss the action if the complaint or other pleading that sets forth the claim is not supported as provided in division (C)(1) or (2) of this section.

(D) Any physician, dentist, podiatrist, optometrist, chiropractor, or other consultant who, in good faith, consults and reviews facts and relevant medical, dental, optometric, or chiropractic records and other materials in connection with a potential action upon a medical, dental, optometric, or chiropractic claim is immune from liability in damages in any action that allegedly arises from that consultation and review.

(E) The conduct of claimants and attorneys in supplying affidavits as required by this section and in responding to affidavits that are supplied as required by this section is subject to section 2323.51 of the Revised Code, if that conduct is frivolous.

HISTORY: 136 v H 682 (Eff 7-28-75); 136 v H 1426 (Eff 7-1-76); 142 v H 327 (Eff 10-20-87); 142 v H 642. Eff 3-17-89.

 § 2307.42 Repealed. 

Repealed, 146 v H 350, § 2 [136 v H 682; 136 v H 1426; 142 v H 327; 142 v H 642]. Eff 1-27-97.

This version of the statute was enacted in 1996 as part of Am. Sub. H.B. 350. In State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, the Ohio Supreme Court held that "Am. Sub. H.B. No. 350 (the Tort Reform Act) violates the one-subject provision of § 15(D), art II of the Ohio Constitution, and is unconstitutional in toto." Because of that decision any pre-HB 350 versions and any post-HB 350 amendments to this statute are also shown.

This section concerned medical, dental, optometric, and chiropractic claims.

The provisions of § 5(C)(1), (I)(2) of HB 350 (146 v --) read as follows:

SECTION 5. * * *

(C)(1) It is the intent of the General Assembly in repealing former section 2307.42 of the Revised Code in this act to reflect the holding of the Supreme Court in Hiatt v. S. Health Facilities, Inc. (1994), 68 Ohio St. 3d 236 and State, ex rel. Bohlman, v. O'Donnell (1994), 68 Ohio St. 3d 496, the holding of the Court of Appeals for Scioto County in Hobbs v. Lopez (1994), 96 OApp3d 670, and the holding of the Court of Appeals for Cuyahoga County in Day v. Hissa (1994), 97 OApp.3d 286, that the provisions of that section are unconstitutional for being in conflict with Civil Rule 11 and, thus, being violative of Section 5(B) of Article IV of the Ohio Constitution.

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(I) * * * (2) It is the intent of the General Assembly in repealing former section 2307.43 of the Revised Code in this act to reflect the holding of the Supreme Court in Morris v. Savoy (1991), 61 Ohio St. 3d 684, that section 2307.43 of the Revised Code is unconstitutional as being violative of the due process of law clause of the Fourteenth Amendment to the United States Constitution and the due course of law provision of Section 16 of Article I of the Ohio Constitution.

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