Chief Sponsor: Brian E. Shiozawa

House Sponsor: Michael S. Kennedy


8     General Description:
9          This bill amends consent provisions of the Utah Health Care Malpractice Act.
10     Highlighted Provisions:
11          This bill:
12          ▸     authorizes an unaccompanied, homeless minor, who is age 15 or older, to consent to
13     certain health care services; and
14          ▸     makes other conforming amendments.
15     Money Appropriated in this Bill:
16          None
17     Other Special Clauses:
18          None
19     Utah Code Sections Affected:
20     AMENDS:
21          78B-3-406, as renumbered and amended by Laws of Utah 2008, Chapter 3

23     Be it enacted by the Legislature of the state of Utah:
24          Section 1. Section 78B-3-406 is amended to read:
25          78B-3-406. Failure to obtain informed consent -- Proof required of patient --
26     Defenses -- Consent to health care.
27          (1) When a person submits to health care rendered by a health care provider, it is
28     presumed that actions taken by the health care provider are either expressly or impliedly
29     authorized to be done. For a patient to recover damages from a health care provider in an

30     action based upon the provider's failure to obtain informed consent, the patient must prove the
31     following:
32          (a) that a provider-patient relationship existed between the patient and health care
33     provider;
34          (b) the health care provider rendered health care to the patient;
35          (c) the patient suffered personal injuries arising out of the health care rendered;
36          (d) the health care rendered carried with it a substantial and significant risk of causing
37     the patient serious harm;
38          (e) the patient was not informed of the substantial and significant risk;
39          (f) a reasonable, prudent person in the patient's position would not have consented to
40     the health care rendered after having been fully informed as to all facts relevant to the decision
41     to give consent; and
42          (g) the unauthorized part of the health care rendered was the proximate cause of
43     personal injuries suffered by the patient.
44          (2) In determining what a reasonable, prudent person in the patient's position would do
45     under the circumstances, the finder of fact shall use the viewpoint of the patient before health
46     care was provided and before the occurrence of any personal injuries alleged to have arisen
47     from said health care.
48          (3) It shall be a defense to any malpractice action against a health care provider based
49     upon alleged failure to obtain informed consent if:
50          (a) the risk of the serious harm which the patient actually suffered was relatively
51     minor;
52          (b) the risk of serious harm to the patient from the health care provider was commonly
53     known to the public;
54          (c) the patient stated, prior to receiving the health care complained of, that he would
55     accept the health care involved regardless of the risk; or that he did not want to be informed of
56     the matters to which he would be entitled to be informed;
57          (d) the health care provider, after considering all of the attendant facts and

58     circumstances, used reasonable discretion as to the manner and extent to which risks were
59     disclosed, if the health care provider reasonably believed that additional disclosures could be
60     expected to have a substantial and adverse effect on the patient's condition; or
61          (e) the patient or his representative executed a written consent which sets forth the
62     nature and purpose of the intended health care and which contains a declaration that the patient
63     accepts the risk of substantial and serious harm, if any, in hopes of obtaining desired beneficial
64     results of health care and which acknowledges that health care providers involved have
65     explained his condition and the proposed health care in a satisfactory manner and that all
66     questions asked about the health care and its attendant risks have been answered in a manner
67     satisfactory to the patient or his representative.
68          (4) The written consent shall be a defense to an action against a health care provider
69     based upon failure to obtain informed consent unless the patient proves that the person giving
70     the consent lacked capacity to consent or shows by clear and convincing evidence that the
71     execution of the written consent was induced by the defendant's affirmative acts of fraudulent
72     misrepresentation or fraudulent omission to state material facts.
73          (5) This act may not be construed to prevent any person 18 years of age or over from
74     refusing to consent to health care for his own person upon personal or religious grounds.
75          (6) Except as provided in Section 76-7-304.5, the following persons are authorized and
76     empowered to consent to any health care not prohibited by law:
77          (a) any parent, whether an adult or a minor, for the parent's minor child;
78          (b) any married person, for a spouse;
79          (c) any person temporarily standing in loco parentis, whether formally serving or not,
80     for the minor under that person's care and any guardian for the guardian's ward;
81          (d) any person 18 years of age or over for that person's parent who is unable by reason
82     of age, physical or mental condition, to provide such consent;
83          (e) any patient 18 years of age or over;
84          (f) any female regardless of age or marital status, when given in connection with her
85     pregnancy or childbirth;

86          (g) in the absence of a parent, any adult for the adult's minor brother or sister; [and]
87          (h) in the absence of a parent, any grandparent for the grandparent's minor
88     grandchild[.];
89          (i) an emancipated minor as provided in Section 78A-6-805;
90          (j) a minor who has contracted a lawful marriage; and
91          (k) an unaccompanied homeless minor, as that term is defined in the McKinney-Vento
92     Homeless Assistance Act of 1987, Pub. L. 100-77, as amended, who is 15 years of age or older.
93          (7) A person who in good faith consents or authorizes health care treatment or
94     procedures for another as provided by this act may not be subject to civil liability.