{¶ 3} In April 2004, appellees dismissed without prejudice American Optical Corporation and Pneumo Abex. After the effective date of H.B. No. 292, in January 2005, appellees filed an amended complaint, again naming appellants American Optical Corporation and Pneumo Abex аs defendants. *5
{¶ 4} Because the amended complaint was filed after the effective date of H.B. No. 292, American Optical Corporation filed a motion to administratively dismiss appellees' claim for failure to comply with R.C.
{¶ 5} Appellants filed an appeal with this court that was dismissed as premature pursuant to R.C.
{¶ 8} An order finding that a plaintiff in an asbestos action has made the prima facie showing required by R.C.
{¶ 9} Prior to the enactment of H.B. No. 292, the prior statute, R.C.
{¶ 10} "a cause of action for bodily injury caused by exposure toasbestos * * * arises upon the date on which the Plaintiff-Appellee isinformed by competent medical authority that the Plaintiff-Appellee hasbeen injured by such exposure, or upon the date on which, by exercise ofreasonable diligence, the Plaintiff-Appellee should have become awarethat he had been injured by the exposure, whichever date occursfirst."4
{¶ 11} H.B. No. 292, the asbestos litigation bill, became effective on September 2, 2004. The General Assembly found it crucial to codify these criteria because the "vast majority" of asbestos claims "are filed by individuals who allege they have been exposed to asbestos and who have some physical sign of exposure to asbestos, but who do not suffer from an asbestos-related impairment."5 *7
{¶ 12} The statutory mandate to satisfy certain minimum "prima-facie" criteria is set forth at R.C.
"The plaintiff in any tort action who alleges an asbestos claim shall file * * * a written report and supporting test results constituting prima-facie evidence of the exposed person's physical impairment that meets the minimum requirements specified in division (B), (C), or (D) of section
2307.92 of the Revised Code, whichever is applicable."6
{¶ 13} Divisions (B), (C), and (D) of R.C.
{¶ 14} The requirements for all three divisions involve a "competent medical authority" who indicates to the court that the plaintiff has satisfied а minimum medical threshold sufficient to support that the "person's exposure to asbestos is a substantial contributing factor to the medical condition."8 "Competent medical authority," for purposes of the prima-facie showing is, among other things, a treating physician who actually has or had a doctor-patient relationship with the exposed person. See R.C.
{¶ 15} In the case at bar, James was diagnosed with a lung mass that was observed on an x-ray in August 2003 after completing a series of tests. The tests included pulmonary function tests and x-rays by certified pulmonologist and B-Reader, Robert Altmeyer, M.D. *8 Dr. Altmeyer discussed the matter with James and recommended further testing. Subsequent tests and a lung biopsy at the Veterans Administration Hospital in Huntington, West Virginia confirmed the malignancy.
{¶ 16} Later, a Dr. Ross referred James to a pulmonary speciаlist, Dr. Ammar Ghanem; also signing was Dr. Nancy Munn. Throughout the records are notations documenting James' history. There are comments, such as, "patient has significant asbestos exposure in past when works in a factory for 35-36 years."9 Another report states, "A: Right upper lobe mass with h/o smoking аnd asbestos exposure make the patient high risk of lung cancer."10
{¶ 17} Once these medical tests were complete, Dr. Altmeyer reviewed his records and the new medical records confirming his original suspicions. He stated the following on July 5, 2005:
"Based upon my review of the above records, it is my opinion that this man's tobacco smoking and asbestos exposure were major contribution causes for the development of his lung cancer, which is documented in these records. * * * Unfortunately, individuals who have had a significant exposure to asbestos, with an appropriate latency period and have had a significant smoking history, have approximately 80-100 times the risk of developing lung cancer compared to the population of individuals who have never smoked tobacco and who have nevеr been exposed to asbestos. This is the well known and universally accepted synergistic or multiplier effect that exists between asbestos exposure and tobacco smoking. Therefore, it is my opinion that both the man's tobacco smoking history and his asbestos *9 expоsure/asbestos were both significant contributing causes for the development of his lung cancer."11
{¶ 18} In addition to the above, board certified pulmonologist Arthur Frank, M.D., also reviewed James' records and stated the following:
"Based upon my review of the materials sent me, it is my oрinion, held with a reasonable degree of medical certainty, that Mr. Sinnott developed two asbestos related conditions. First I believe he developed asbestosis as characterized by the radiologic changes, given his past history of exposure to asbеstos. Secondly, and more importantly, he developed and ultimately died of, a cancer of the lung due to his exposure to asbestos in combination with his cigarette smoking. It would further be my opinion that the scientific literature clearly documents that both asbestos and сigarettes, independently, can lead to the development of lung cancer, but that it is also well known that the addition of asbestos on top of cigarette smoking greatly increases the risk of developing lung cancer, far beyond that of cigarette smoking alone. In addition it would further be my opinion that each and every exposure, to any and all products containing asbestos, of any and all fiber types, would have contributed to his developing both of these diseases. This would include his work at the foundry, as well as his many exposures to brake and clutch products."12
{¶ 19} The evidence submitted was sufficient to establish a causal link between James' lung cancer and his asbestos exposure. In addition, James provided ample evidence demonstrating that his occupational asbestos exposure was а substantial factor in causing his lung cancer. Appellee submitted hospital records documenting his diagnosis of lung cancer, history of smoking, and asbestos exposure. Two pulmonologists, Dr. Altmeyer and Dr. *10 Frank, rendered opinions consistent with the hospital pulmonologists as to the causes of James' lung cancer.
{¶ 20} R.C.
{¶ 21} R.C.
*11"(Z) `Competent medical authority' means a medical doctor who is providing a diagnosis for purposes of constituting prima-facie evidence of an exposed person's physical impairment that meets the requirements speсified in section
2307.92 of the Revised Code and who meets the following requirements:(1) The medical doctor is a board-certified internist, pulmonary specialist, oncologist, pathologist, or occupational medicine specialist.
(2) The medical doctor is actually treating or has treated the exposed person and has or had a doctor-patient relationship with the person.
(3) As the basis for the diagnosis, the medical doctor has not relied, in whole or in part, on any of the following:
(a) The reports or opinions of any doctor, clinic, laboratory, or testing company that performed an examination, test, or screening of the claimant's medical condition in violation of any law, regulation, licensing requirement, or medical code of practice of the state in which that еxamination, test, or screening was conducted;
(b) The reports or opinions of any doctor, clinic, laboratory, or testing company that performed an examination, test, or screening of the claimant's medical condition that was conducted without cleаrly establishing a doctor-patient relationship with the claimant or medical personnel involved in the examination, test, or screening process;
(c) The reports or opinions of any doctor, clinic, laboratory, or testing company that performed an examination, test, or screening of the claimant's medical condition that required the claimant to agree to retain the legal services of the law firm sponsoring the examination, test, or screening.
(4) The medical doctor spends not more than twenty-five per cеnt of the medical doctor's professional practice time in providing consulting or expert services in connection with actual or potential tort actions, and the medical doctor's medical group, professional corporation, clinic, оr other affiliated group earns not more than twenty percent of its revenues from providing those services."
{¶ 22} James' treating physicians were employed by the Veterans Administration. This limited James' ability to achieve the typical doctor-patient relationship envisioned by the statute. However, achieving the typical doctor-patient relationship in the statute is not a bright line test. Nor is it the sole factor in the statute.
{¶ 23} As the appellants stated in their brief, part of the rationale behind the statute is to preserve scarce resоurces for individuals who are truly sick as a result of asbestos exposure. The statute is not in place to penalize veterans or other nontraditional patients who were properly diagnosed by competent medical authority personnel and have the medical records and other evidence to support their claim. The evidence in the case at bar supports the lower court's ruling. Appellees have satisfied the requirements of the statute.
{¶ 24} James should not be penalized for utilizing his veteran benefits in order to оbtain affordable and necessary health care. Although James may have lacked a traditional doctor, he was examined by a competent medical doctor, as defined in the statute. In addition, the evidence in this case supports James' doctors' diagnosis. That fact that he was *12 examined by a doctor employed by the Veterans Administration does not diminish the value of the evidence contained in the medical records. We find the lower court's decision to be well-founded.
{¶ 25} Appellants' assignment of error is overruled.
Judgment affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, J., and PATRICIA ANN BLACKMON, J., CONCUR