Deidre M. Henderson
8 LONG TITLE
9 General Description:
10 This bill enacts provisions relating to certain patient examinations.
11 Highlighted Provisions:
12 This bill:
13 ▸ creates requirements for certain examinations on an unconscious or anesthetized
15 ▸ amends provisions relating to informed consent for health care procedures; and
16 ▸ makes technical changes.
17 Money Appropriated in this Bill:
19 Other Special Clauses:
21 Utah Code Sections Affected:
23 26-8a-503, as last amended by Laws of Utah 2017, Chapter 326
24 78B-3-406, as last amended by Laws of Utah 2017, Chapter 113
26 58-1-509, Utah Code Annotated 1953
28 Be it enacted by the Legislature of the state of Utah:
29 Section 1. Section 26-8a-503 is amended to read:
30 26-8a-503. Discipline of emergency medical services personnel.
31 (1) The department may refuse to issue a license or renewal, or revoke, suspend,
32 restrict, or place on probation an individual's license if:
33 (a) the individual does not meet the qualifications for licensure under Section
35 (b) the individual has engaged in conduct, as defined by committee rule, that:
36 (i) is unprofessional;
37 (ii) is adverse to the public health, safety, morals, or welfare; or
38 (iii) would adversely affect public trust in the emergency medical service system;
39 (c) the individual has violated Section 26-8a-502 or other provision of this chapter;
40 (d) the individual has violated Section 58-1-509;
42 incompetent for any reason; or
44 skill and safety because of illness, drunkenness, use of drugs, narcotics, chemicals, or any other
45 type of material, or as a result of any other mental or physical condition, when the individual's
46 condition demonstrates a clear and unjustifiable threat or potential threat to oneself, coworkers,
47 or the public health, safety, or welfare that cannot be reasonably mitigated.
48 (2) (a) An action to revoke, suspend, restrict, or place a license on probation shall be
49 done in:
50 (i) consultation with the peer review board created in Section 26-8a-105; and
51 (ii) accordance with Title 63G, Chapter 4, Administrative Procedures Act.
52 (b) Notwithstanding Subsection (2)(a), the department may issue a cease and desist
53 order under Section 26-8a-507 to immediately suspend an individual's license pending an
54 administrative proceeding to be held within 30 days if there is evidence to show that the
55 individual poses a clear, immediate, and unjustifiable threat or potential threat to the public
56 health, safety, or welfare.
57 (3) An individual whose license has been suspended, revoked, or restricted may apply
58 for reinstatement of the license at reasonable intervals and upon compliance with any
59 conditions imposed upon the license by statute, committee rule, or the terms of the suspension,
60 revocation, or restriction.
61 (4) In addition to taking disciplinary action under Subsection (1), the department may
62 impose sanctions in accordance with Section 26-23-6.
63 Section 2. Section 58-1-509 is enacted to read:
64 58-1-509. Patient consent for certain medical examinations.
65 (1) As used in this section:
66 (a) "Health care provider" means:
67 (i) an individual who is:
68 (A) a healthcare provider as defined in Section 78B-3-403; and
69 (B) licensed under this title;
70 (ii) emergency medical service personnel as defined in Section 26-8a-102; or
71 (iii) an individual described in Subsection 58-1-307(1)(b) or (c).
72 (b) "Patient examination" means a medical examination that requires contact with the
73 patient's sexual organs.
74 (2) A health care provider may not perform a patient examination on an anesthetized or
75 unconscious patient unless:
76 (a) the health care provider obtains consent from the patient in accordance with
77 Subsection (3);
78 (b) the performance of the patient examination is within the scope of care for a
79 procedure or diagnostic examination scheduled to be performed on the patient; or
80 (c) the patient examination is immediately necessary for diagnosis or treatment of the
82 (3) To obtain consent to perform a patient examination on an anesthetized or
83 unconscious patient, before performing the patient examination, the health care provider shall:
84 (a) provide the patient with a written document that:
85 (i) is provided separately from any other notice or agreement;
86 (ii) contains the following heading printed at the top of the document in not smaller
87 than 18-point bold face type: "CONSENT FOR EXAMINATION OF PELVIC REGION";
88 (iii) specifies the nature and purpose of the patient examination;
89 (iv) names the primary health care provider that the patient authorizes to perform the
90 patient examination;
91 (v) states whether there may be a student or resident that the patient authorizes to:
92 (A) perform an additional patient examination; or
93 (B) observe or otherwise be present at the patient examination, either in person or
94 through electronic means; and
95 (vi) provides the patient with a series of check boxes that allow the patient to:
96 (A) consent to the patient examination for diagnosis or treatment and an additional
97 patient examination performed by a student or resident for an educational or training purpose;
98 (B) consent to the patient examination only for diagnosis or treatment; or
99 (C) refuse to consent to the patient examination;
100 (b) obtain the signature of the patient or the patient's representative on the written
101 document while witnessed by a third party; and
102 (c) sign the written document.
103 Section 3. Section 78B-3-406 is amended to read:
104 78B-3-406. Failure to obtain informed consent -- Proof required of patient --
105 Defenses -- Consent to health care.
106 (1) (a) When a person submits to health care rendered by a health care provider, it is
107 presumed that actions taken by the health care provider are either expressly or impliedly
108 authorized to be done.
109 (b) For a patient to recover damages from a health care provider in an action based
110 upon the provider's failure to obtain informed consent, the patient must prove the following:
116 causing the patient serious harm;
119 consented to the health care rendered after having been fully informed as to all facts relevant to
120 the decision to give consent; and
122 personal injuries suffered by the patient.
123 (2) In determining what a reasonable, prudent person in the patient's position would do
124 under the circumstances, the finder of fact shall use the viewpoint of the patient before health
125 care was provided and before the occurrence of any personal injuries alleged to have arisen
126 from said health care.
127 (3) It shall be a defense to any malpractice action against a health care provider based
128 upon alleged failure to obtain informed consent if:
129 (a) the risk of the serious harm which the patient actually suffered was relatively
131 (b) the risk of serious harm to the patient from the health care provider was commonly
132 known to the public;
133 (c) the patient stated, prior to receiving the health care complained of, that he would
134 accept the health care involved regardless of the risk; or that he did not want to be informed of
135 the matters to which he would be entitled to be informed;
136 (d) the health care provider, after considering all of the attendant facts and
137 circumstances, used reasonable discretion as to the manner and extent to which risks were
138 disclosed, if the health care provider reasonably believed that additional disclosures could be
139 expected to have a substantial and adverse effect on the patient's condition; or
140 (e) the patient or [
141 forth the nature and purpose of the intended health care and which contains a declaration that
142 the patient accepts the risk of substantial and serious harm, if any, in hopes of obtaining desired
143 beneficial results of health care and which acknowledges that health care providers involved
144 have explained [
145 manner and that all questions asked about the health care and its attendant risks have been
146 answered in a manner satisfactory to the patient or [
147 (4) The written consent shall be a defense to an action against a health care provider
148 based upon failure to obtain informed consent unless the patient proves that the person giving
149 the consent lacked capacity to consent or shows by clear and convincing evidence that the
150 execution of the written consent was induced by the defendant's affirmative acts of fraudulent
151 misrepresentation or fraudulent omission to state material facts.
152 (5) This act may not be construed to prevent any person 18 years of age or over from
153 refusing to consent to health care for [
155 (6) Except as provided in Section 76-7-304.5, the following persons are authorized and
156 empowered to consent to any health care not prohibited by law:
157 (a) any parent, whether an adult or a minor, for the parent's minor child;
158 (b) any married person, for a spouse;
159 (c) any person temporarily standing in loco parentis, whether formally serving or not,
160 for the minor under that person's care and any guardian for the guardian's ward;
161 (d) any person 18 years of age or over for that person's parent who is unable by reason
162 of age, physical or mental condition, to provide such consent;
163 (e) any patient 18 years of age or over;
164 (f) any female regardless of age or marital status, when given in connection with her
165 pregnancy or childbirth;
166 (g) in the absence of a parent, any adult for the adult's minor brother or sister;
167 (h) in the absence of a parent, any grandparent for the grandparent's minor grandchild;
168 (i) an emancipated minor as provided in Section 78A-6-805;
169 (j) a minor who has contracted a lawful marriage; and
170 (k) an unaccompanied homeless minor, as that term is defined in the McKinney-Vento
171 Homeless Assistance Act of 1987, Pub. L. 100-77, as amended, who is 15 years of age or older.
172 (7) A person who in good faith consents or authorizes health care treatment or
173 procedures for another as provided by this act may not be subject to civil liability.
174 (8) Notwithstanding any other provision of this section, if a health care provider fails to
175 comply with the requirement in Section 58-67-809 or 58-68-809, the health care provider is
176 presumed to have lacked informed consent with respect to the patient examination, as defined
177 in Section 58-67-809 or 58-68-809.