Senator Daniel McCay proposes the following substitute bill:


1     
CONSENT FOR MEDICAL PROCEDURE AMENDMENTS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Daniel McCay

5     
House Sponsor: Kim F. Coleman

6     Cosponsor:
Deidre M. Henderson

7     

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
14     patient;
15          ▸     amends provisions relating to informed consent for health care procedures; and
16          ▸     makes technical changes.
17     Money Appropriated in this Bill:
18          None
19     Other Special Clauses:
20          None
21     Utah Code Sections Affected:
22     AMENDS:
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
25     ENACTS:
26          58-1-509, Utah Code Annotated 1953
27     

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
34     26-8a-302;
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;
41          [(d)] (e) a court of competent jurisdiction has determined the individual to be mentally
42     incompetent for any reason; or
43          [(e)] (f) the individual is unable to provide emergency medical services with reasonable
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
81     patient.
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:
111          [(a)] (i) that a provider-patient relationship existed between the patient and health care
112     provider;
113          [(b)] (ii) the health care provider rendered health care to the patient;
114          [(c)] (iii) the patient suffered personal injuries arising out of the health care rendered;
115          [(d)] (iv) the health care rendered carried with it a substantial and significant risk of
116     causing the patient serious harm;
117          [(e)] (v) the patient was not informed of the substantial and significant risk;
118          [(f)] (vi) a reasonable, prudent person in the patient's position would not have
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
121          [(g)] (vii) the unauthorized part of the health care rendered was the proximate cause of
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
130     minor;
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 [his] the patient's representative executed a written consent which sets
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 [his] the patient's condition and the proposed health care in a satisfactory
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 [his] the patient's representative.
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 [his] the patient's own person upon personal or religious
154     grounds.
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.