S.B. 133

1

LIABILITY PROTECTIONS FOR CHARITY
2 CARE
3 2006 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Peter C. Knudson
6 House Sponsor: ____________
7
8 LONG TITLE
9 General Description:
10 This bill amends the Pharmacy Practice Act and the Health Care Providers Immunity
11 From Liability Act.
12 Highlighted Provisions:
13 This bill:
14 . extends the gross negligence standard to a health care professional who:
15 . works in a health care clinic that does not receive any compensation from any
16 source for caring for patients; and
17 . does not receive any remuneration or compensation for caring for the patient
18 other than from the health care facility; and
19 . provides that the Pharmacy Practice Act does not prevent a health care professional
20 from personally dispensing medications to a patient, free of charge, if the health
21 care professional has prescribing authority and works in a health care facility whose
22 primary purpose is to provide care without compensation.
23 Monies Appropriated in this Bill:
24 None
25 Other Special Clauses:
26 None
27 Utah Code Sections Affected:

28 AMENDS:
29 58-13-3, as last amended by Chapter 299, Laws of Utah 2005
30 58-17b-610, as enacted by Chapter 280, Laws of Utah 2004
31
32 Be it enacted by the Legislature of the state of Utah:
33 Section 1. Section 58-13-3 is amended to read:
34 58-13-3. Qualified immunity -- Health professionals -- Charity care.
35 (1) (a) (i) The Legislature finds many residents of this state do not receive medical care
36 and preventive health care because they lack health insurance or because of financial
37 difficulties or cost.
38 (ii) The Legislature also finds that many physicians, charity health care facilities, and
39 other health care professionals in this state would be willing to volunteer medical and allied
40 services without compensation if they were not subject to the high exposure of liability
41 connected with providing these services.
42 (b) The Legislature therefore declares that its intention in enacting this section is to
43 encourage the provision of uncompensated volunteer charity health care in exchange for a
44 limitation on liability for the health care facilities and health care professionals who provide
45 those volunteer services.
46 (2) As used in this section:
47 (a) "Health care facility" means any clinic or hospital, church, or organization whose
48 primary purpose is to sponsor, promote, or organize uncompensated health care services for
49 people unable to pay for health care services.
50 (b) "Health care professional" means individuals licensed under Title 58, Occupations
51 and Professions, as physicians and surgeons, osteopaths, podiatrists, optometrists,
52 chiropractors, dentists, dental hygienists, registered nurses, certified nurse midwives, other
53 nurses licensed under Section 58-31b-301 , and licensed Direct-entry midwives.
54 (c) "Remuneration or compensation":
55 (i) (A) means direct or indirect receipt of any payment by the physician and surgeon,
56 health care facility, other health care professional, or organization, on behalf of the patient,
57 including payment or reimbursement under medicare or medicaid, or under the state program
58 for the medically indigent on behalf of the patient; and

59 (B) except as provided in Subsection (3)(b)(ii), compensation, salary, or
60 reimbursement to the health care professional from any source for the health care professional's
61 services or time in volunteering to provide uncompensated health care; and
62 (ii) does not mean any grant or donation to the health care facility used to offset direct
63 costs associated with providing the uncompensated health care such as medical supplies or
64 drugs.
65 (3) A health care professional who provides health care treatment at or on behalf of a
66 health care facility is not liable in a medical malpractice action if:
67 (a) the treatment was within the scope of the health care professional's license under
68 this title;
69 (b) (i) [neither the health care professional nor] the health care facility [received] does
70 not receive compensation or remuneration for the treatment of the patient; and
71 (ii) the health care professional does not receive any compensation or remuneration for
72 the treatment of a patient, except compensation from the health care facility;
73 (c) the acts or omissions of the health care professional were not grossly negligent or
74 willful and wanton; and
75 (d) prior to rendering services, the health care professional disclosed in writing to the
76 patient, or if a minor, to the patient's parent or legal guardian, that:
77 (i) the health care [professional] facility is providing the services without receiving
78 remuneration or compensation;
79 (ii) the health care professional is providing the services to the patient without charge
80 and is not receiving any remuneration, except from the health care facility; and
81 (iii) that in exchange for receiving uncompensated health care, the patient consents to
82 waive any right to sue for professional negligence except for acts or omissions which are
83 grossly negligent or are willful and wanton.
84 (4) A health care facility which sponsors, promotes, or organizes the uncompensated
85 care is not liable in a medical malpractice action for acts and omissions if:
86 (a) the health care facility meets the requirements in Subsection (3)(b);
87 (b) the acts and omissions of the health care facility were not grossly negligent or
88 willful and wanton; and
89 (c) the health care facility has posted, in a conspicuous place, a notice that in

90 accordance with this section the health care facility is not liable for any civil damages for acts
91 or omissions except for those acts or omissions that are grossly negligent or are willful and
92 wanton.
93 (5) Immunity from liability under this section does not extend to the use of general
94 anesthesia or care that requires an overnight stay in a general acute or specialty hospital
95 licensed under Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act.
96 Section 2. Section 58-17b-610 is amended to read:
97 58-17b-610. Patients' immediate needs.
98 (1) (a) This chapter may not be construed to prevent the personal administration of
99 drugs or medicines by practitioners licensed to prescribe in order to supply the immediate
100 needs of their patients.
101 (b) Immediate need for a patient includes giving out drug samples for up to a three-day
102 supply or the amount necessary to determine the best pharmaceutical agent for that specific
103 patient.
104 (2) This chapter may not be construed to prevent the personal dispensing of drugs or
105 medicines by a practitioner:
106 (a) who is licensed to prescribe;
107 (b) who is providing medical treatment through a health care facility whose primary
108 purpose is to provide uncompensated care as defined in Section 58-13-3 ;
109 (c) who is dispensing the medicine or drug free of charge to the patient; and
110 (d) in order to supply the patients with drugs or medicines that are necessary for the
111 patient's treatment.

Legislative Review Note
as of 1-5-06 9:38 AM

The modifications in this bill to the qualified immunity provisions for charity care raises open
courts and equal protection constitutional concerns. This bill extends the protection against
liability for medical malpractice to health care providers who receive compensation from a
charity care facility that only provides free medical care, except when the health care provider
commits gross negligence. This limitation of liability to gross negligence may be challenged
under Article I, Section 11 of the Utah Constitution which provides "All courts shall be open,
and every person, for an injury done to him in his person, property or reputation, shall have
remedy by due course of law, which shall be administered without denial or unnecessary
delay." The law may also be challenged under the equal protection provisions of Article I,
Section 2 of the Utah Constitution. Equal protection demands that persons similarly situated
should be treated similarly under the law. This bill would treat persons harmed by medical
malpractice differently based on whether the person received free care at a facility that provides
only free care, or whether the person received free care at a facility that provides free care and
paid care. In the first situation, the person could not sue for an injury unless there was gross
negligence. In the second situation the person could sue for an injury by proving simple
negligence. This different standard may be challenged as a violation of equal protection under
the law.

Office of Legislative Research and General Counsel