78B-3-405. Amount of award reduced by amounts of collateral sources available to
plaintiff -- No reduction where subrogation right exists -- Collateral sources defined --
Procedure to preserve subrogation rights -- Evidence admissible -- Exceptions.
(1) In all malpractice actions against health care providers as defined in Section
78B-3-403 in which damages are awarded to compensate the plaintiff for losses sustained, the
court shall reduce the amount of the award by the total of all amounts paid to the plaintiff from
all collateral sources which are available to him. No reduction may be made for collateral
sources for which a subrogation right exists as provided in this section nor shall there be a
reduction for any collateral payment not included in the award of damages.
(2) Upon a finding of liability and an awarding of damages by the trier of fact, the court
shall receive evidence concerning the total amounts of collateral sources which have been paid to
or for the benefit of the plaintiff or are otherwise available to him. The court shall also take
testimony of any amount which has been paid, contributed, or forfeited by, or on behalf of the
plaintiff or members of his immediate family to secure his right to any collateral source benefit
which he is receiving as a result of his injury, and shall offset any reduction in the award by those
amounts. Evidence may not be received and a reduction may not be made with respect to future
collateral source benefits except as specified in Subsection (5).
(3) For purposes of this section "collateral source" means payments made to or for the
benefit of the plaintiff for:
(a) medical expenses and disability payments payable under the United States Social
Security Act, any federal, state, or local income disability act, or any other public program,
except the federal programs which are required by law to seek subrogation;
(b) any health, sickness, or income replacement insurance, automobile accident insurance
that provides health benefits or income replacement coverage, and any other similar insurance
benefits, except life insurance benefits available to the plaintiff, whether purchased by the
plaintiff or provided by others;
(c) any contract or agreement of any person, group, organization, partnership, or
corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health
care services, except benefits received as gifts, contributions, or assistance made gratuitously;
and
(d) any contractual or voluntary wage continuation plan provided by employers or any
other system intended to provide wages during a period of disability.
(4) To preserve subrogation rights for amounts paid or received prior to settlement or
judgment, a provider of collateral sources shall, at least 30 days before settlement or trial of the
action, serve a written notice upon each health care provider against whom the malpractice action
has been asserted. The written notice shall state:
(a) the name and address of the provider of collateral sources;
(b) the amount of collateral sources paid;
(c) the names and addresses of all persons who received payment; and
(d) the items and purposes for which payment has been made.
(5) Evidence is admissible of government programs that provide payments or benefits
available in the future to or for the benefit of the plaintiff to the extent available irrespective of
the recipient's ability to pay. Evidence of the likelihood or unlikelihood that the programs,
payments, or benefits will be available in the future is also admissible. The trier of fact may
consider the evidence in determining the amount of damages awarded to a plaintiff for future
expenses.
(6) A provider of collateral sources is not entitled to recover any amount of benefits from
a health care provider, the plaintiff, or any other person or entity as reimbursement for collateral
source payments made prior to settlement or judgment, including any payments made under Title
26, Chapter 19, Medical Benefits Recovery Act, except to the extent that subrogation rights to
amounts paid prior to settlement or judgment are preserved as provided in this section.
(7) All policies of insurance providing benefits affected by this section are construed in
accordance with this section.
Renumbered and Amended by Chapter 3, 2008 General Session
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Last revised: Thursday, May 28, 2009