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S.B. 138

This document includes Senate Committee Amendments incorporated into the bill on Tue, Feb 18, 2003 at 11:13 AM by rday. -->             

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Senate Committee Amendments 2-18-2003 le/cjd



Sponsor: Leonard M. Blackham

             5      This act amends the Utah Health Care Malpractice Act and the Health Care Providers
             6      Immunity From Liability Act. The act amends provisions related to arbitration
             7      agreements between a health care provider and a patient. The act allows a provider and
             8      patient to negotiate an arbitration agreement in nonemergency situations. The act
             9      amends provisions related to immunity from liability for certain charity care. S THE ACT
             10      This act affects sections of Utah Code Annotated 1953 as follows:
             11      AMENDS:
             12          58-13-3, as last amended by Chapter 160, Laws of Utah 2000
             12a      S 63-55-278, AS LAST AMENDED BY CHAPTER 116, LAWS OF UTAH, 2002 s
             13          78-14-17, as enacted by Chapter 278, Laws of Utah 1999
             14      Be it enacted by the Legislature of the state of Utah:
             15          Section 1. Section 58-13-3 is amended to read:
             16           58-13-3. Qualified immunity -- Health professionals -- Charity care.
             17          (1) (a) The Legislature finds many residents of this state do not receive medical care
             18      and preventive health care because they lack health insurance or because of financial
             19      difficulties or cost. The Legislature also finds that many physicians, charity health care
             20      facilities, and other health care professionals in this state would be willing to volunteer
             21      medical and allied services without compensation if they were not subject to the high exposure
             22      of liability connected with providing these services.
             23          (b) The Legislature therefore declares that its intention in enacting this section is to
             24      encourage the provision of uncompensated volunteer charity health care [in charity care
             25      settings] in exchange for a limitation on liability for the health care facilities and health care

             26      professionals who provide those volunteer services.
             27          (2) As used in this section:

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         (a) "Health care facility" means any clinic or hospital, church, or organization whose
             29      primary purpose is to sponsor, promote, or organize uncompensated health care services for
             30      people unable to pay for health care services.
             31          (b) "Health care professional" means individuals licensed under Title 58, Occupations
             32      and Professions, as physicians and surgeons, osteopaths, podiatrists, optometrists,
             33      chiropractors, dentists, dental hygienists, registered nurses, certified nurse midwives, and other
             34      nurses licensed under Section 58-31b-301 .
             35          (c) "Remuneration or compensation":
             36          (i) (A) means direct or indirect receipt of any payment by the physician and surgeon,
             37      health care facility, other health care professional, or organization, on behalf of the patient,
             38      including payment or reimbursement under medicare or medicaid, or under the state program
             39      for the medically indigent on behalf of the patient; and
             40          (B) compensation, salary, or reimbursement to the health care professional from any
             41      source for the health care professional's services or time in volunteering to provide
             42      uncompensated health care; and
             43          (ii) does not mean any grant or donation to the health care facility used to offset direct
             44      costs associated with providing the uncompensated health care such as medical supplies or
             45      drugs.
             46          (3) A health care professional who provides health care treatment at or on behalf of a
             47      health care facility is not liable in a medical malpractice action if:
             48          (a) the treatment was within the scope of the health care professional's license under
             49      this title;
             50          (b) neither the health care professional nor the health care facility received
             51      compensation or remuneration for the treatment;
             52          (c) the acts or omissions of the health care professional were not grossly negligent or
             53      willful and wanton; and
             54          (d) prior to rendering services, the health care professional disclosed in writing to the
             55      patient, or if a minor, to the patient's parent or legal guardian, that the health care professional
             56      is providing the services without receiving remuneration or compensation and that in exchange
             57      for receiving uncompensated health care, the patient consents to waive any right to sue for
             58      professional negligence except for acts or omissions which are grossly negligent or are willful

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Senate Committee Amendments 2-18-2003 le/cjd
     and wanton.
             60          (4) A health care facility which sponsors, promotes, or organizes the uncompensated
             61      care is not liable in a medical malpractice action for acts and omissions if:
             62          (a) the health care facility meets the requirements in Subsection (3)(b);
             63          (b) the acts and omissions of the health care facility were not grossly negligent or
             64      willful and wanton; and
             65          (c) the health care facility has posted, in a conspicuous place, a notice that in
             66      accordance with this section the health care facility is not liable for any civil damages for acts
             67      or omissions except for those acts or omissions that are grossly negligent or are willful and
             68      wanton.
             69          (5) Immunity from liability under this section does not extend to the use of general
             70      anesthesia or care that requires an overnight stay in a general acute or specialty hospital
             71      licensed under Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act.
             71a      S Section 2. Section 63-55-278 is amended to read:
             71b          63-55-278.   Repeal dates, Title 78.
             71c          (1) The Office of the Court Administrator, created in Section 78-3-23, is repealed July 1, 2003.
             71d          (2) Foster care citizen review boards and steering committee, created in Title 78, Chapter 3g,
             71e      is repealed July 1, 2007.
             71f          (3) Alternative Dispute Resolution Act, created in Title 78, Chapter 31b, is repealed July 1,
             71g      2003.
             71i      IS REPEALED JULY 1, 2009. s
             72          Section S [ 2 ] 3 s . Section 78-14-17 is amended to read:
             73           78-14-17. Arbitration agreements.
             74          (1) After May 2, 1999, for a binding arbitration agreement between a patient and a
             75      health care provider to be validly executed or, if the requirements of this Subsection (1) have
             76      not been previously met on at least one occasion, renewed:
             77          (a) the patient shall be given, in writing and by verbal explanation, the following
             78      information on:
             79          (i) the requirement that the patient must arbitrate a claim instead of having the claim
             80      heard by a judge or jury;
             81          (ii) the role of an arbitrator and the manner in which arbitrators are selected under the
             82      agreement;
             83          (iii) the patient's responsibility, if any, for arbitration-related costs under the agreement;

             84          (iv) the right of the patient to decline to enter into the agreement and still receive health

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     care if Subsection (2) applies;
             86          (v) the automatic renewal of the agreement each year unless the agreement is canceled
             87      in writing before the renewal date; [and]
             88          (vi) the right of the patient to have questions about the arbitration agreement answered;
             89      and

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         (vii) the right of the patient to rescind the agreement within 30 days of signing the
             91      agreement; and
             92          (b) the agreement shall require that:
             93          (i) one arbitrator be collectively selected by all persons claiming damages;
             94          (ii) one arbitrator be selected by the health care provider;
             95          (iii) a third arbitrator be jointly selected by all persons claiming damages and the health
             96      care provider from a list of individuals approved as arbitrators by the state or federal courts of
             97      Utah;
             98          (iv) all parties waive the requirement of Section 78-14-12 to appear before a hearing
             99      panel in a malpractice action against a health care provider;
             100          (v) the patient be given the right to rescind the agreement within 30 days of signing the
             101      agreement; and
             102          (vi) the term of the agreement be for one year and that the agreement be automatically
             103      renewed each year unless the agreement is canceled in writing by the patient or health care
             104      provider before the renewal date.
             105          (2) Notwithstanding Subsection (1), a patient may not be denied health care of any kind
             106      from the emergency department of a general acute hospital, as defined in Section 26-21-2 , on
             107      the sole basis that the patient or a person described in Subsection (5) refused to enter into a
             108      binding arbitration agreement with a health care provider.
             109          (3) A written acknowledgment of having received a written and verbal explanation of a
             110      binding arbitration agreement signed by or on behalf of the patient shall be a defense to a claim
             111      that the patient did not receive a written and verbal explanation of the agreement as required by
             112      Subsection (1) unless the patient:
             113          (a) proves that the person who signed the agreement lacked the capacity to do so; or
             114          (b) shows by clear and convincing evidence that the execution of the agreement was
             115      induced by the health care provider's affirmative acts of fraudulent misrepresentation or
             116      fraudulent omission to state material facts.
             117          (4) The requirements of Subsection (1) do not apply to a claim governed by a binding
             118      arbitration agreement that was executed or renewed before May 3, 1999.
             119          (5) A legal guardian or a person described in Subsection 78-14-5 (4), except a person
             120      temporarily standing in loco parentis, may execute or rescind a binding arbitration agreement

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     on behalf of a patient.
             122          (6) This section does not apply to any arbitration agreement that is subject to the
             123      Federal Arbitration Act, 9 U.S.C. Sec. 1 et seq.

Legislative Review Note
    as of 1-27-03 1:59 PM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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