Ohio § 2317.02

§ 2317.02.

The following persons shall not testify in certain respects: (A)(1) An attorney, concerning a communication made to the attorney by a client in that

relation or concerning the attorney's advice to a client, except that the attorney

may testify by express consent of the client or, if the client is deceased, by the

express consent of the surviving spouse or the executor or administrator of the estate

of the deceased client.  However, if the client voluntarily reveals the substance of attorney-client communications

in a nonprivileged context or is deemed by section 2151.421 of the Revised Code to have waived any testimonial privilege under this division, the attorney may be

compelled to testify on the same subject. The testimonial privilege established under this division does not apply concerning

either of the following: (a) A communication between a client in a capital case, as defined in section 2901.02 of the Revised Code , and the client's attorney if the communication is relevant to a subsequent ineffective

assistance of counsel claim by the client alleging that the attorney did not effectively

represent the client in the case; (b) A communication between a client who has since died and the deceased client's attorney

if the communication is relevant to a dispute between parties who claim through that

deceased client, regardless of whether the claims are by testate or intestate succession

or by inter vivos transaction, and the dispute addresses the competency of the deceased

client when the deceased client executed a document that is the basis of the dispute

or whether the deceased client was a victim of fraud, undue influence, or duress when

the deceased client executed a document that is the basis of the dispute. (2) An attorney, concerning a communication made to the attorney by a client in that

relationship or the attorney's advice to a client, except that if the client is an

insurance company, the attorney may be compelled to testify, subject to an in camera

inspection by a court, about communications made by the client to the attorney or

by the attorney to the client that are related to the attorney's aiding or furthering

an ongoing or future commission of bad faith by the client, if the party seeking disclosure

of the communications has made a prima-facie showing of bad faith, fraud, or criminal

misconduct by the client. (B)(1) A physician, advanced practice registered nurse, or dentist concerning a communication

made to the physician, advanced practice registered nurse, or dentist by a patient

in that relation or the advice of a physician, advanced practice registered nurse,

or dentist given to a patient, except as otherwise provided in this division, division

(B)(2), and division (B)(3) of this section, and except that, if the patient is deemed

by section 2151.421 of the Revised Code to have waived any testimonial privilege under this division, the physician or advanced

practice registered nurse may be compelled to testify on the same subject. The testimonial privilege established under this division does not apply, and a physician,

advanced practice registered nurse, or dentist may testify or may be compelled to

testify, in any of the following circumstances: (a) In any civil action, in accordance with the discovery provisions of the Rules of

Civil Procedure in connection with a civil action, or in connection with a claim under

Chapter 4123. of the Revised Code, under any of the following circumstances: (i) If the patient or the guardian or other legal representative of the patient gives

express consent; (ii) If the patient is deceased, the spouse of the patient or the executor or administrator

of the patient's estate gives express consent; (iii) If a medical claim, dental claim, chiropractic claim, or optometric claim, as defined

in section 2305.113 of the Revised Code , an action for wrongful death, any other type of civil action, or a claim under Chapter

4123. of the Revised Code is filed by the patient, the personal representative of

the estate of the patient if deceased, or the patient's guardian or other legal representative. (b) In any civil action concerning court-ordered treatment or services received by a

patient, if the court-ordered treatment or services were ordered as part of a case

plan journalized under section 2151.412 of the Revised Code or the court-ordered treatment or services are necessary or relevant to dependency,

neglect, or abuse or temporary or permanent custody proceedings under Chapter 2151.

of the Revised Code. (c) In any criminal action concerning any test or the results of any test that determines

the presence or concentration of alcohol, a drug of abuse, a combination of them,

a controlled substance, or a metabolite of a controlled substance in the patient's

whole blood, blood serum or plasma, breath, urine, oral fluid, or other bodily substance

at any time relevant to the criminal offense in question. (d) In any criminal action against a physician, advanced practice registered nurse, or

dentist.  In such an action, the testimonial privilege established under this division does

not prohibit the admission into evidence, in accordance with the Rules of Evidence,

of a patient's medical or dental records or other communications between a patient

and the physician, advanced practice registered nurse, or dentist that are related

to the action and obtained by subpoena, search warrant, or other lawful means.  A court that permits or compels a physician, advanced practice registered nurse,

or dentist to testify in such an action or permits the introduction into evidence

of patient records or other communications in such an action shall require that appropriate

measures be taken to ensure that the confidentiality of any patient named or otherwise

identified in the records is maintained.  Measures to ensure confidentiality that may be taken by the court include sealing

its records or deleting specific information from its records. (e)(i) If the communication was between a patient who has since died and the deceased patient's

physician, advanced practice registered nurse, or dentist, the communication is relevant

to a dispute between parties who claim through that deceased patient, regardless of

whether the claims are by testate or intestate succession or by inter vivos transaction,

and the dispute addresses the competency of the deceased patient when the deceased

patient executed a document that is the basis of the dispute or whether the deceased

patient was a victim of fraud, undue influence, or duress when the deceased patient

executed a document that is the basis of the dispute. (ii) If neither the spouse of a patient nor the executor or administrator of that patient's

estate gives consent under division (B)(1)(a)(ii) of this section, testimony or the

disclosure of the patient's medical records by a physician, advanced practice registered

nurse, dentist, or other health care provider under division (B)(1)(e)(i) of this

section is a permitted use or disclosure of protected health information, as defined

in 45 C.F.R. 160.103 , and an authorization or opportunity to be heard shall not be required. (iii) Division (B)(1)(e)(i) of this section does not require a mental health professional

to disclose psychotherapy notes, as defined in 45 C.F.R. 164.501 . (iv) An interested person who objects to testimony or disclosure under division (B)(1)(e)(i)

of this section may seek a protective order pursuant to Civil Rule 26 . (v) A person to whom protected health information is disclosed under division (B)(1)(e)(i)

of this section shall not use or disclose the protected health information for any

purpose other than the litigation or proceeding for which the information was requested

and shall return the protected health information to the covered entity or destroy

the protected health information, including all copies made, at the conclusion of

the litigation or proceeding. (2)(a) If any law enforcement officer submits a written statement to a health care provider

that states that an official criminal investigation has begun regarding a specified

person or that a criminal action or proceeding has been commenced against a specified

person, that requests the provider to supply to the officer copies of any records

the provider possesses that pertain to any test or the results of any test administered

to the specified person to determine the presence or concentration of alcohol, a drug

of abuse, a combination of them, a controlled substance, or a metabolite of a controlled

substance in the person's whole blood, blood serum or plasma, breath, oral fluid,

or urine at any time relevant to the criminal offense in question, and that conforms

to section 2317.022 of the Revised Code , the provider, except to the extent specifically prohibited by any law of this state

or of the United States, shall supply to the officer a copy of any of the requested

records the provider possesses.  If the health care provider does not possess any of the requested records, the provider

shall give the officer a written statement that indicates that the provider does not

possess any of the requested records. (b) If a health care provider possesses any records of the type described in division

(B)(2)(a) of this section regarding the person in question at any time relevant to

the criminal offense in question, in lieu of personally testifying as to the results

of the test in question, the custodian of the records may submit a certified copy

of the records, and, upon its submission, the certified copy is qualified as authentic

evidence and may be admitted as evidence in accordance with the Rules of Evidence. Division (A) of section 2317.422 of the Revised Code does not apply to any certified copy of records submitted in accordance with this

division.  Nothing in this division shall be construed to limit the right of any party to call

as a witness the person who administered the test to which the records pertain, the

person under whose supervision the test was administered, the custodian of the records,

the person who made the records, or the person under whose supervision the records

were made. (3)(a) If the testimonial privilege described in division (B)(1) of this section does not

apply as provided in division (B)(1)(a)(iii) of this section, a physician, advanced

practice registered nurse, or dentist may be compelled to testify or to submit to

discovery under the Rules of Civil Procedure only as to a communication made to the

physician, advanced practice registered nurse, or dentist by the patient in question

in that relation, or the advice of the physician, advanced practice registered nurse,

or dentist given to the patient in question, that related causally or historically

to physical or mental injuries that are relevant to issues in the medical claim, dental

claim, chiropractic claim, or optometric claim, action for wrongful death, other civil

action, or claim under Chapter 4123. of the Revised Code. (b) If the testimonial privilege described in division (B)(1) of this section does not

apply to a physician, advanced practice registered nurse, or dentist as provided in

division (B)(1)(c) of this section, the physician, advanced practice registered nurse,

or dentist, in lieu of personally testifying as to the results of the test in question,

may submit a certified copy of those results, and, upon its submission, the certified

copy is qualified as authentic evidence and may be admitted as evidence in accordance

with the Rules of Evidence. Division (A) of section 2317.422 of the Revised Code does not apply to any certified copy of results submitted in accordance with this

division.  Nothing in this division shall be construed to limit the right of any party to call

as a witness the person who administered the test in question, the person under whose

supervision the test was administered, the custodian of the results of the test, the

person who compiled the results, or the person under whose supervision the results

were compiled. (4) The testimonial privilege described in division (B)(1) of this section is not waived

when a communication is made by a physician or advanced practice registered nurse

to a pharmacist or when there is communication between a patient and a pharmacist

in furtherance of the physician-patient or advanced practice registered nurse-patient

relation. (5)(a) As used in divisions (B)(1) to (4) of this section, “ communication ” means acquiring, recording, or transmitting any information, in any manner, concerning

any facts, opinions, or statements necessary to enable a physician, advanced practice

registered nurse, or dentist to diagnose, treat, prescribe, or act for a patient.  A “communication” may include, but is not limited to, any medical or dental, office,

or hospital communication such as a record, chart, letter, memorandum, laboratory

test and results, x-ray, photograph, financial statement, diagnosis, or prognosis. (b) As used in division (B)(2) of this section, “ health care provider ” means a hospital, ambulatory care facility, long-term care facility, pharmacy, emergency

facility, or health care practitioner. (c) As used in division (B)(5)(b) of this section: (i) “ Ambulatory care facility ” means a facility that provides medical, diagnostic, or surgical treatment to patients

who do not require hospitalization, including a dialysis center, ambulatory surgical

facility, cardiac catheterization facility, diagnostic imaging center, extracorporeal

shock wave lithotripsy center, home health agency, inpatient hospice, birthing center,

radiation therapy center, emergency facility, and an urgent care center.  “Ambulatory health care facility” does not include the private office of a physician,

advanced practice registered nurse, or dentist, whether the office is for an individual

or group practice. (ii) “ Emergency facility ” means a hospital emergency department or any other facility that provides emergency

medical services. (iii) “Health care practitioner” has the same meaning as in section 4769.01 of the Revised Code . (iv) “Hospital” has the same meaning as in section 3727.01 of the Revised Code . (v) “ Long-term care facility ” means a nursing home, residential care facility, or home for the aging, as those

terms are defined in section 3721.01 of the Revised Code ;  a residential facility licensed under section 5119.34 of the Revised Code that provides accommodations, supervision, and personal care services for three to

sixteen unrelated adults;  a nursing facility, as defined in section 5165.01 of the Revised Code ;  a skilled nursing facility, as defined in section 5165.01 of the Revised Code ;  and an intermediate care facility for individuals with intellectual disabilities,

as defined in section 5124.01 of the Revised Code . (vi) “Pharmacy” has the same meaning as in section 4729.01 of the Revised Code . (d) As used in divisions (B)(1) and (2) of this section, “drug of abuse” has the same

meaning as in section 4506.01 of the Revised Code . (6) Divisions (B)(1), (2), (3), (4), and (5) of this section apply to doctors of medicine,

doctors of osteopathic medicine, doctors of podiatry, advanced practice registered

nurses, and dentists. (7) Nothing in divisions (B)(1) to (6) of this section affects, or shall be construed

as affecting, the immunity from civil liability conferred by section 307.628 of the Revised Code or the immunity from civil liability conferred by section 2305.33 of the Revised Code upon physicians or advanced practice registered nurses who report an employee's use

of a drug of abuse, or a condition of an employee other than one involving the use

of a drug of abuse, to the employer of the employee in accordance with division (B)

of that section.  As used in division (B)(7) of this section, “employee,” “employer,” and “physician”

have the same meanings as in section 2305.33 of the Revised Code and “advanced practice registered nurse” has the same meaning as in section 4723.01 of the Revised Code . (C)(1) A cleric, when the cleric remains accountable to the authority of that cleric's church,

denomination, or sect, concerning a confession made, or any information confidentially

communicated, to the cleric for a religious counseling purpose in the cleric's professional

character.  The cleric may testify by express consent of the person making the communication,

except when the disclosure of the information is in violation of a sacred trust and

except that, if the person voluntarily testifies or is deemed by division (A)(4)(c) of section 2151.421 of the Revised Code to have waived any testimonial privilege under this division, the cleric may be compelled

to testify on the same subject except when disclosure of the information is in violation

of a sacred trust. (2) As used in division (C) of this section: (a) “ Cleric ” means a member of the clergy, rabbi, priest, Christian Science practitioner, or

regularly ordained, accredited, or licensed minister of an established and legally

cognizable church, denomination, or sect. (b) “ Sacred trust ” means a confession or confidential communication made to a cleric in the cleric's

ecclesiastical capacity in the course of discipline enjoined by the church to which

the cleric belongs, including, but not limited to, the Catholic Church, if both of

the following apply: (i) The confession or confidential communication was made directly to the cleric. (ii) The confession or confidential communication was made in the manner and context that

places the cleric specifically and strictly under a level of confidentiality that

is considered inviolate by canon law or church doctrine. (D) Husband or wife, concerning any communication made by one to the other, or an act

done by either in the presence of the other, during coverture, unless the communication

was made, or act done, in the known presence or hearing of a third person competent

to be a witness;  and such rule is the same if the marital relation has ceased to

exist; (E) A person who assigns a claim or interest, concerning any matter in respect to which

the person would not, if a party, be permitted to testify; (F) A person who, if a party, would be restricted under section 2317.03 of the Revised Code , when the property or thing is sold or transferred by an executor, administrator,

guardian, trustee, heir, devisee, or legatee, shall be restricted in the same manner

in any action or proceeding concerning the property or thing. (G)(1) A school guidance counselor who holds a valid educator license from the state board

of education as provided for in section 3319.22 of the Revised Code , a person licensed under Chapter 4757. of the Revised Code as a licensed professional

clinical counselor, licensed professional counselor, social worker, independent social

worker, marriage and family therapist or independent marriage and family therapist,

or registered under Chapter 4757. of the Revised Code as a social work assistant concerning

a confidential communication received from a client in that relation or the person's

advice to a client unless any of the following applies: (a) The communication or advice indicates clear and present danger to the client or other

persons.  For the purposes of this division, cases in which there are indications of present

or past child abuse or neglect of the client constitute a clear and present danger. (b) The client gives express consent to the testimony. (c) If the client is deceased, the surviving spouse or the executor or administrator

of the estate of the deceased client gives express consent. (d) The client voluntarily testifies, in which case the school guidance counselor or

person licensed or registered under Chapter 4757. of the Revised Code may be compelled

to testify on the same subject. (e) The court in camera determines that the information communicated by the client is

not germane to the counselor-client, marriage and family therapist-client, or social

worker-client relationship. (f) A court, in an action brought against a school, its administration, or any of its

personnel by the client, rules after an in-camera inspection that the testimony of

the school guidance counselor is relevant to that action. (g) The testimony is sought in a civil action and concerns court-ordered treatment or

services received by a patient as part of a case plan journalized under section 2151.412 of the Revised Code or the court-ordered treatment or services are necessary or relevant to dependency,

neglect, or abuse or temporary or permanent custody proceedings under Chapter 2151.

of the Revised Code. (2) Nothing in division (G)(1) of this section shall relieve a school guidance counselor

or a person licensed or registered under Chapter 4757. of the Revised Code from the

requirement to report information concerning child abuse or neglect under section 2151.421 of the Revised Code . (H) A mediator acting under a mediation order issued under division (A) of section 3109.052 of the Revised Code or otherwise issued in any proceeding for divorce, dissolution, legal separation,

annulment, or the allocation of parental rights and responsibilities for the care

of children, in any action or proceeding, other than a criminal, delinquency, child

abuse, child neglect, or dependent child action or proceeding, that is brought by

or against either parent who takes part in mediation in accordance with the order

and that pertains to the mediation process, to any information discussed or presented

in the mediation process, to the allocation of parental rights and responsibilities

for the care of the parents' children, or to the awarding of parenting time rights

in relation to their children; (I) A communications assistant, acting within the scope of the communication assistant's

authority, when providing telecommunications relay service pursuant to section 4931.06 of the Revised Code or Title II of the “Communications Act of 1934,” 104 Stat. 366 (1990), 47 U.S.C. 225 , concerning a communication made through a telecommunications relay service.  Nothing in this section shall limit the obligation of a communications assistant

to divulge information or testify when mandated by federal law or regulation or pursuant

to subpoena in a criminal proceeding. Nothing in this section shall limit any immunity or privilege granted under federal

law or regulation. (J)(1) A chiropractor in a civil proceeding concerning a communication made to the chiropractor

by a patient in that relation or the chiropractor's advice to a patient, except as

otherwise provided in this division.  The testimonial privilege established under this division does not apply, and a

chiropractor may testify or may be compelled to testify, in any civil action, in accordance

with the discovery provisions of the Rules of Civil Procedure in connection with a

civil action, or in connection with a claim under Chapter 4123. of the Revised Code,

under any of the following circumstances: (a) If the patient or the guardian or other legal representative of the patient gives

express consent. (b) If the patient is deceased, the spouse of the patient or the executor or administrator

of the patient's estate gives express consent. (c) If a medical claim, dental claim, chiropractic claim, or optometric claim, as defined

in section 2305.113 of the Revised Code , an action for wrongful death, any other type of civil action, or a claim under Chapter

4123. of the Revised Code is filed by the patient, the personal representative of

the estate of the patient if deceased, or the patient's guardian or other legal representative. (2) If the testimonial privilege described in division (J)(1) of this section does not

apply as provided in division (J)(1)(c) of this section, a chiropractor may be compelled

to testify or to submit to discovery under the Rules of Civil Procedure only as to

a communication made to the chiropractor by the patient in question in that relation,

or the chiropractor's advice to the patient in question, that related causally or

historically to physical or mental injuries that are relevant to issues in the medical

claim, dental claim, chiropractic claim, or optometric claim, action for wrongful

death, other civil action, or claim under Chapter 4123. of the Revised Code. (3) The testimonial privilege established under this division does not apply, and a chiropractor

may testify or be compelled to testify, in any criminal action or administrative proceeding. (4) As used in this division, “ communication ” means acquiring, recording, or transmitting any information, in any manner, concerning

any facts, opinions, or statements necessary to enable a chiropractor to diagnose,

treat, or act for a patient.  A communication may include, but is not limited to, any chiropractic, office, or

hospital communication such as a record, chart, letter, memorandum, laboratory test

and results, x-ray, photograph, financial statement, diagnosis, or prognosis. (K)(1) Except as provided under division (K)(2) of this section, a critical incident stress

management team member concerning a communication received from an individual who

receives crisis response services from the team member, or the team member's advice

to the individual, during a debriefing session. (2) The testimonial privilege established under division (K)(1) of this section does

not apply if any of the following are true: (a) The communication or advice indicates clear and present danger to the individual

who receives crisis response services or to other persons.  For purposes of this division, cases in which there are indications of present or

past child abuse or neglect of the individual constitute a clear and present danger. (b) The individual who received crisis response services gives express consent to the

testimony. (c) If the individual who received crisis response services is deceased, the surviving

spouse or the executor or administrator of the estate of the deceased individual gives

express consent. (d) The individual who received crisis response services voluntarily testifies, in which

case the team member may be compelled to testify on the same subject. (e) The court in camera determines that the information communicated by the individual

who received crisis response services is not germane to the relationship between the

individual and the team member. (f) The communication or advice pertains or is related to any criminal act. (3) As used in division (K) of this section: (a) “ Crisis response services ” means consultation, risk assessment, referral, and on-site crisis intervention services

provided by a critical incident stress management team to individuals affected by

crisis or disaster. (b) “ Critical incident stress management team member ” or “ team member ” means an individual specially trained to provide crisis response services as a member

of an organized community or local crisis response team that holds membership in the

Ohio critical incident stress management network. (c) “ Debriefing session ” means a session at which crisis response services are rendered by a critical incident

stress management team member during or after a crisis or disaster. (L)(1) Subject to division (L)(2) of this section and except as provided in division (L)(3)

of this section, an employee assistance professional, concerning a communication made

to the employee assistance professional by a client in the employee assistance professional's

official capacity as an employee assistance professional. (2) Division (L)(1) of this section applies to an employee assistance professional who

meets either or both of the following requirements: (a) Is certified by the employee assistance certification commission to engage in the

employee assistance profession; (b) Has education, training, and experience in all of the following: (i) Providing workplace-based services designed to address employer and employee productivity

issues; (ii) Providing assistance to employees and employees' dependents in identifying and finding

the means to resolve personal problems that affect the employees or the employees'

performance; (iii) Identifying and resolving productivity problems associated with an employee's concerns

about any of the following matters:  health, marriage, family, finances, substance

abuse or other addiction, workplace, law, and emotional issues; (iv) Selecting and evaluating available community resources; (v) Making appropriate referrals; (vi) Local and national employee assistance agreements; (vii) Client confidentiality. (3) Division (L)(1) of this section does not apply to any of the following: (a) A criminal action or proceeding involving an offense under sections 2903.01 to 2903.06 of the Revised Code if the employee assistance professional's disclosure or testimony relates directly

to the facts or immediate circumstances of the offense; (b) A communication made by a client to an employee assistance professional that reveals

the contemplation or commission of a crime or serious, harmful act; (c) A communication that is made by a client who is an unemancipated minor or an adult

adjudicated to be incompetent and indicates that the client was the victim of a crime

or abuse; (d) A civil proceeding to determine an individual's mental competency or a criminal action

in which a plea of not guilty by reason of insanity is entered; (e) A civil or criminal malpractice action brought against the employee assistance professional; (f) When the employee assistance professional has the express consent of the client or,

if the client is deceased or disabled, the client's legal representative; (g) When the testimonial privilege otherwise provided by division (L)(1) of this section

is abrogated under law.