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S.B. 138 Enrolled





Sponsor: Leonard M. Blackham

                  This act amends the Utah Health Care Malpractice Act and the Health Care Providers
                  Immunity From Liability Act. The act amends provisions related to arbitration
                  agreements between a health care provider and a patient. The act allows a provider and
                  patient to negotiate an arbitration agreement in nonemergency situations. The act
                  amends provisions related to immunity from liability for certain charity care. The act
                  sunsets the medical malpractice arbitration agreements section.
                  This act affects sections of Utah Code Annotated 1953 as follows:
                      58-13-3, as last amended by Chapter 160, Laws of Utah 2000
                      63-55-278, as last amended by Chapter 116, Laws of Utah 2002
                      78-14-17, as enacted by Chapter 278, Laws of Utah 1999
                  Be it enacted by the Legislature of the state of Utah:
                      Section 1. Section 58-13-3 is amended to read:
                       58-13-3. Qualified immunity -- Health professionals -- Charity care.
                      (1) (a) The Legislature finds many residents of this state do not receive medical care
                  and preventive health care because they lack health insurance or because of financial
                  difficulties or cost. The Legislature also finds that many physicians, charity health care
                  facilities, and other health care professionals in this state would be willing to volunteer
                  medical and allied services without compensation if they were not subject to the high exposure
                  of liability connected with providing these services.
                      (b) The Legislature therefore declares that its intention in enacting this section is to
                  encourage the provision of uncompensated volunteer charity health care [in charity care
                  settings] in exchange for a limitation on liability for the health care facilities and health care
                  professionals who provide those volunteer services.
                      (2) As used in this section:

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

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                  receiving uncompensated health care, the patient consents to waive any right to sue for
                  professional negligence except for acts or omissions which are grossly negligent or are willful
                  and wanton.
                      (4) A health care facility which sponsors, promotes, or organizes the uncompensated care
                  is not liable in a medical malpractice action for acts and omissions if:
                      (a) the health care facility meets the requirements in Subsection (3)(b);
                      (b) the acts and omissions of the health care facility were not grossly negligent or willful
                  and wanton; and
                      (c) the health care facility has posted, in a conspicuous place, a notice that in accordance
                  with this section the health care facility is not liable for any civil damages for acts or omissions
                  except for those acts or omissions that are grossly negligent or are willful and wanton.
                      (5) Immunity from liability under this section does not extend to the use of general
                  anesthesia or care that requires an overnight stay in a general acute or specialty hospital licensed
                  under Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act.
                      Section 2. Section 63-55-278 is amended to read:
                       63-55-278. Repeal dates, Title 78.
                      (1) The Office of the Court Administrator, created in Section 78-3-23 , is repealed July 1,
                      (2) Foster care citizen review boards and steering committee, created in Title 78, Chapter
                  3g, is repealed July 1, 2007.
                      (3) Alternative Dispute Resolution Act, created in Title 78, Chapter 31b, is repealed July
                  1, 2003.
                      (4) Section 78-14-17 , regarding medical malpractice arbitration agreements, is repealed
                  July 1, 2009.
                      Section 3. Section 78-14-17 is amended to read:
                       78-14-17. Arbitration agreements.
                      (1) After May 2, 1999, for a binding arbitration agreement between a patient and a health
                  care provider to be validly executed or, if the requirements of this Subsection (1) have not been

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                  previously met on at least one occasion, renewed:
                      (a) the patient shall be given, in writing and by verbal explanation, the following
                  information on:
                      (i) the requirement that the patient must arbitrate a claim instead of having the claim
                  heard by a judge or jury;
                      (ii) the role of an arbitrator and the manner in which arbitrators are selected under the
                      (iii) the patient's responsibility, if any, for arbitration-related costs under the agreement;
                      (iv) the right of the patient to decline to enter into the agreement and still receive health
                  care if Subsection (2) applies;
                      (v) the automatic renewal of the agreement each year unless the agreement is canceled in
                  writing before the renewal date; [and]
                      (vi) the right of the patient to have questions about the arbitration agreement answered;
                      (vii) the right of the patient to rescind the agreement within 30 days of signing the
                  agreement; and
                      (b) the agreement shall require that:
                      (i) one arbitrator be collectively selected by all persons claiming damages;
                      (ii) one arbitrator be selected by the health care provider;
                      (iii) a third arbitrator be jointly selected by all persons claiming damages and the health
                  care provider from a list of individuals approved as arbitrators by the state or federal courts of
                      (iv) all parties waive the requirement of Section 78-14-12 to appear before a hearing
                  panel in a malpractice action against a health care provider;
                      (v) the patient be given the right to rescind the agreement within 30 days of signing the
                  agreement; and
                      (vi) the term of the agreement be for one year and that the agreement be automatically
                  renewed each year unless the agreement is canceled in writing by the patient or health care

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                  provider before the renewal date.
                      (2) Notwithstanding Subsection (1), a patient may not be denied health care of any kind
                  from the emergency department of a general acute hospital, as defined in Section 26-21-2 , on the
                  sole basis that the patient or a person described in Subsection (5) refused to enter into a binding
                  arbitration agreement with a health care provider.
                      (3) A written acknowledgment of having received a written and verbal explanation of a
                  binding arbitration agreement signed by or on behalf of the patient shall be a defense to a claim
                  that the patient did not receive a written and verbal explanation of the agreement as required by
                  Subsection (1) unless the patient:
                      (a) proves that the person who signed the agreement lacked the capacity to do so; or
                      (b) shows by clear and convincing evidence that the execution of the agreement was
                  induced by the health care provider's affirmative acts of fraudulent misrepresentation or
                  fraudulent omission to state material facts.
                      (4) The requirements of Subsection (1) do not apply to a claim governed by a binding
                  arbitration agreement that was executed or renewed before May 3, 1999.
                      (5) A legal guardian or a person described in Subsection 78-14-5 (4), except a person
                  temporarily standing in loco parentis, may execute or rescind a binding arbitration agreement on
                  behalf of a patient.
                      (6) This section does not apply to any arbitration agreement that is subject to the Federal
                  Arbitration Act, 9 U.S.C. Sec. 1 et seq.

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