Wednesday, January 18, 2006

THE PRIVILEGE OF YOUR MEDICAL AND LEGAL INFORMATION REMAINING PRIVATE

Authored by: Wrightsel & Wrightsel
R. Douglas Wrightsel
Bradley B. Wrightsel

Are your conversations with your doctor and attorney private? You expect that when you meet privately with your doctor to discuss health issues or with your lawyer to discuss legal matters that these conversations are between you and your professional and not to be shared with others without your permission. While that is generally known to be the case, what about when you die? Should the privilege die when you do?

When you die, these privileges will be held by the fiduciary of your estate, who is typically the person you select and entrust to be your executor. As was the case when you were alive, your estate fiduciary must give express written consent to the waiver of the medical and legal privilege. However, effective March 31, 2003, Amended House Bill No. 533 (Am. H. B. No. 533) chopped away at the privilege of keeping this information private by granting interested parties, in a will contest, the ability to have the medical privilege waived. Additionally, House Bill 144, which provides for the waiver of the attorney-client and doctor-patient privilege in probate litigation cases, has passed the House and Senate and will be enacted in the near future. The ultimate purpose of this article is to discuss the scope of these changes.

Will the change made by Am. H. B. No. 533 and the upcoming changes in H. B. 144 be considered good changes? The answer may depend upon which side of the contest you are on. For example, our firm has developed a niche in defending the validity of wills. In this type of practice, it would be very rare to advise a client to waive the estate’s privileges (and never before reviewing the privileged material first). Our opponents, the counsel for the will contestant, may feel that the privilege is not being asserted to preserve confidences of the deceased, but rather to win the case.

From a public policy standpoint on the issue of privilege, there are really two views which are best illustrated by ways of example. On the one hand, you have a situation where a relative, feeling slighted by the omission of his name in decedent’s will, contacts an attorney, who agrees to take the matter on a contingency fee basis, i.e., there is really nothing for the client to lose. While there may be no merit to the case (and perhaps the testator knew this relative to be just the type of scoundrel who would file such a lawsuit), a complaint is filed in a “shotgun” fashion, alleging that the testator lacked testamentary capacity, that there was undue influence exerted on a susceptible testator, and that the will was not properly executed (the complainant may even throw in a claim of tortuous interference with expectancy of inheritance for good measure). This strategy would entail lengthy discovery, requests for waivers of privileges, and perhaps a motion to remove the fiduciary. The plaintiff may find a “carrot” in the discovery process (enough to survive a motion for summary judgment) or at least create enough stress, headache and expense to negotiate a settlement.

On the other hand, you have a situation where your client tells you that a person in a trusted position took advantage of a relative, who was elderly and vulnerable. Your client tells you that this person became very involved in the relative’s financial affairs and ultimately the client’s relative made a deathbed will which drastically changed the relative’s estate plan. This change, of course, benefited the conspirator by making him both the beneficiary and executor. The conspirator, in this instance, will certainly decline to waive the medical or legal privilege and/or to cooperate in the discovery process, creating delay and further deception.

Lets call the person who is most concerned about situation one the proponent of the privileges, and the person who is most concerned about situation two the proponent of full disclosure. No matter which category you fall under, the change implemented by Am. H. B. No. 533 and the upcoming enactment of H. B. 144 shows the legislature’s willingness to relax the law of privileges.

Since at the time of this article the change in the law affects only the medical privilege and not the attorney-client privilege, the two privileges are addressed separately below. Ohio Revised code §2317.02 creates both of these privileges in Ohio. However, although these privileges are statutorily-created, the courts have not hesitated to expand the reach of the waiver. Probate courts tend to take the view that the fiduciary must remain impartial and that the potential use of the statutory privileges for the fiduciary’s own advantage is a conflict of interest worthy of the fiduciary’s removal. In general, if your client is the executor and a beneficiary under the will, and you assert the privilege on your client’s behalf, the probate court will replace your client with a disinterested successor fiduciary. Therefore, in practice, the proponent of the privilege would state that the waiver of the privileges has been “forced” by the probate courts. The proponent of full disclosure feels that the court acted properly and should be assisted by the statutory revision.

Significantly, the previous change to O.R.C. §2317.02 dealt with will contest actions only. As noted above, H. B. 144 will expand the statutory waiver of the privilege to all probate litigation disputes, based upon the logic that there is no legitimate reason to distinguish between the types of disputes. Before the upcoming changes in H. B. 144, the fact that the statute was specific in stating "will contest actions" may have actually made it more unlikely that a probate court would “force” a waiver of the privilege in other probate litigation matters. Clearly the enactment of H. B. 144 provides a significant victory for the advocates for full disclosure.

Furthermore, the previous change to O.R.C. §2317.02 stated that a physician may be compelled to testify “only as to the patient in question on issues relevant to the competency of the patient at the time of the execution of the will.” This language provided the proponent of the privilege with two arguments. First, the waiver deals with “the competency of the patient” only. This would obviously not cover the susceptibility of the patient to undue influence. Therefore, if the contestant of the will is arguing undue influence only and not lack of testamentary capacity, there is no basis for the waiver of the medical privilege.

Second, previous change to O.R.C. §2317.02 specifically stated, “at the time of the execution of the will”. Therefore, the physician would not be permitted to reveal confidences not tied directly to the date of the execution of the will. This language allowed the proponent of the privilege to argue that the statute is specific as to what is allowed to be disclosed, and that the court is not permitted to expand the scope of the statutorily-created privilege. Technically, if there is no medical information occurring during the period of the execution of the will, there is no basis for the waiver of the privilege.

As previously stated, the attorney-client privilege was not altered by Am. H. B. No. 533. The current statutory law states that an attorney shall not reveal “a communication made to the attorney by a client in that relation or 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 …” There was great effort to extend the statutory-waiver to the attorney-client privilege, by adopting Uniform Evidence Rule 502(d)(2). While the estate fiduciary still holds the attorney-client privilege for the decedent (we will save the discussion of what constitutes a waiver for another time), the Ohio Legislature is providing a waiver of that privilege in probate litigation cases.

In many instances, the attorney representing the estate prepared the last will and testament for the decedent and was a witness to the execution of the document. This situation would probably result in two things happening. First, the court would find that the testator waived any privilege and consented to the attorney testifying in the future with respect to the execution of the document. Proponents of the privilege would argue that the waiver should not expand beyond testimony regarding the execution of the will. Second, the attorney could be disqualified from representing the fiduciary in defending the validity of the will. This really is not that big of a deal. Another attorney can simply come in and assert the privilege. Remember the privilege is held by the client and not the attorney.

Like with the medical privilege, if the fiduciary arbitrarily refused to waive all aspects of the attorney-client privilege, the probate court would likely consider removing the fiduciary. However, the legislature’s previous refusal to statutorily change the attorney-client privilege, could be construed as holding this particular privilege in higher regard. However, with the upcoming implementation of the statutory waiver of the attorney-client, the proponent of full disclosure is clearly the winner.

In conclusion, one should know about the ever evolving changes in the area of statutory privileges. If you find yourself in a situation where you hold a privilege or represent a person who does, evaluate the situation. First, review the records yourself, so you know what information would be disclosed. If there is nothing there, you may not want to make a big deal out of fighting the waiver of the privilege and use the information in a motion for summary judgment. However, you may want to make an effort to protect privileged information that is irrelevant to any claim contesting the validity of the will.

The authors suggest that estate planners protect their clients in advance from potential will contests. This can be done by following a routine or a checklist regarding the preparation and subsequent execution of the document. It is useful to keep notes of the meetings with the client and of the execution of the document. These notes should contain specific information regarding testamentary capacity and undue influence. Lastly, it is highly recommended to exclude will beneficiaries from being in the room during the execution of the document (make this a habit). While their presence certainly is not enough to establish a claim of undue influence, the exclusion of their presence would practically eliminate the potential claim.

11 comments:

Bradley Wrightsel said...

The law on privilege as passed by House and Senate is as follows:

126th General Assembly
Regular Session
2005-2006
Sub. H. B. No. 144

A BILL
To amend sections 2107.76 and 2317.02 of the Revised Code to waive the physician-patient and attorney-client privileges in probate cases under certain circumstances, to prohibit persons who have not received or waived the right to receive notice of the admission of a will to probate from commencing an action to contest the validity of the will more than three months after the filing of a certificate of giving notice or waiver of notice of the admission of the will to probate, and to provide that the savings statute does not apply to a civil action to contest the validity of a will.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2107.76 and 2317.02 of the Revised Code be amended to read as follows:
Sec. 2107.76. (A) No person who has received or waived the right to receive the notice of the admission of a will to probate required by section 2107.19 of the Revised Code may commence an action permitted by section 2107.71 of the Revised Code to contest the validity of the will more than three months after the filing of the certificate described in division (A)(3) of section 2107.19 of the Revised Code. No other person may commence an action permitted by section 2107.71 of the Revised Code to contest the validity of the will more than three months after the initial filing of a certificate described in division (A)(3) of section 2107.19 of the Revised Code. A person under any legal disability nevertheless may commence an action permitted by section 2107.71 of the Revised Code to contest the validity of the will within four three months after the disability is removed, but the rights saved shall not affect the rights of a purchaser, lessee, or encumbrancer for value in good faith and shall not impose any liability upon a fiduciary who has acted in good faith, or upon a person delivering or transferring property to any other person under authority of a will, whether or not the purchaser, lessee, encumbrancer, fiduciary, or other person had actual or constructive notice of the legal disability.
(B) Section 2305.19 of the Revised Code does not apply to an action permitted by section 2107.71 of the Revised Code to contest the validity of a will.
Sec. 2317.02. The following persons shall not testify in certain respects:
(A) An attorney, concerning a communication made to the attorney by a client in that relation or 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 and except that. However, if the client voluntarily testifies 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 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.
(B)(1) A physician or a dentist concerning a communication made to the physician or dentist by a patient in that relation or the physician's or dentist's advice 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 may be compelled to testify on the same subject.
The testimonial privilege established under this division does not apply, and a physician 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, or alcohol and a drug of abuse in the patient's blood, breath, urine, or other bodily substance at any time relevant to the criminal offense in question.
(d) In any criminal action against a physician 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 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 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) In any will contest action under sections 2107.71 to 2107.77 of the Revised Code if all of the following apply:
(i) The patient is deceased.
(ii) A party to the will contest action requests the testimony, demonstrates to the court that that party would be an heir of the patient if the patient died without a will, is a beneficiary under the will that is the subject of the will contest action, or is a beneficiary under another testamentary document allegedly executed by the patient, and demonstrates to the court that the testimony is necessary to establish the party's rights as described in this division (i) If the communication was between a patient who has since died and the deceased patient's physician 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, 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, or alcohol and a drug of abuse in the person's blood, breath, 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 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 or dentist by the patient in question in that relation, or the physician's or dentist'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.
(b) If the testimonial privilege described in division (B)(1) of this section does not apply to a physician or dentist as provided in division (B)(1)(c) of this section, the physician 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.
(c) If the testimonial privilege described in division (B)(1) of this section does not apply as provided in division (B)(1)(e) of this section, a physician or dentist may be compelled to testify or to submit to discovery in the will contest action under sections 2107.71 to 2107.77 of the Revised Code only as to the patient in question on issues relevant to the competency of the patient at the time of the execution of the will. Testimony or discovery conducted pursuant to this division shall be conducted in accordance with the Rules of Civil Procedure.
(4) The testimonial privilege described in division (B)(1) of this section is not waived when a communication is made by a physician to a pharmacist or when there is communication between a patient and a pharmacist in furtherance of the physician-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 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 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; an adult care facility, as defined in section 3722.01 of the Revised Code; a nursing facility or intermediate care facility for the mentally retarded, as those terms are defined in section 5111.20 of the Revised Code; a facility or portion of a facility certified as a skilled nursing facility under Title XVIII of the "Social Security Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended.
(vi) "Pharmacy" has the same meaning as in section 4729.01 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, 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 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.
(C) A member of the clergy, rabbi, priest, or regularly ordained, accredited, or licensed minister of an established and legally cognizable church, denomination, or sect, when the member of the clergy, rabbi, priest, or minister remains accountable to the authority of that church, denomination, or sect, concerning a confession made, or any information confidentially communicated, to the member of the clergy, rabbi, priest, or minister for a religious counseling purpose in the member of the clergy's, rabbi's, priest's, or minister's professional character; however, the member of the clergy, rabbi, priest, or minister 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;
(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 professional clinical counselor, 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 4931.35 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.
Section 2. That existing sections 2107.76 and 2317.02 of the Revised Code are hereby repealed.

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