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7 LONG TITLE
8 General Description:
9 This bill enacts the Utah Medical Candor Act.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines terms;
13 ▸ creates a medical candor process where a health care provider may investigate an
14 injury, or suspected injury, associated with a health care process and may
15 communicate information about the investigation to the patient and any
16 representative of the patient;
17 ▸ addresses written notice of a medical candor process;
18 ▸ addresses an offer of compensation made as part of a medical candor process;
19 ▸ addresses confidentiality, disclosure, and effect of communications, materials, or
20 information that is created for or during a medical candor process;
21 ▸ addresses the confidentiality of information from a patient's medical record that is
22 used or disclosed in a medical candor process;
23 ▸ addresses the confidentiality of any communication, material, or information
24 provided to a patient or a representative of a patient before participation in a
25 medical candor process;
26 ▸ addresses the recording of communications during a medical candor process;
27 ▸ addresses reporting requirements in relation to a medical candor process; and
28 ▸ allows for the disclosure of deidentified information or data of an adverse event for
29 certain purposes.
30 Money Appropriated in this Bill:
31 None
32 Other Special Clauses:
33 This bill provides revisor instructions.
34 Utah Code Sections Affected:
35 ENACTS:
36 78B-3-450, Utah Code Annotated 1953
37 78B-3-451, Utah Code Annotated 1953
38 78B-3-452, Utah Code Annotated 1953
39 78B-3-453, Utah Code Annotated 1953
40 78B-3-454, Utah Code Annotated 1953
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42 Be it enacted by the Legislature of the state of Utah:
43 Section 1. Section 78B-3-450 is enacted to read:
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45 78B-3-450. Definitions.
46 As used in this part:
47 (1) "Adverse event" means an injury or suspected injury that is associated with a health
48 care process rather than an underlying condition of a patient or a disease.
49 (2) "Affected party" means:
50 (a) a patient; and
51 (b) any representative of a patient.
52 (3) "Communication" means any written or oral communication created for or during a
53 medical candor process.
54 (4) "Governmental entity" means the same as that term is defined in Section
55 63G-7-102.
56 (5) "Health care" means the same as that term is defined in Section 78B-3-403.
57 (6) "Health care provider" means the same as that term is defined in Section
58 78B-3-403.
59 (7) "Malpractice action against a health provider" means the same as that term is
60 defined in Section 78B-3-403.
61 (8) "Medical candor process" means the process described in Section 78B-3-451.
62 (9) "Patient" means the same as that term is defined in Section 78B-3-403.
63 (10) "Public employee" means the same as the term "employee" as defined in Section
64 63G-7-102.
65 (11) (a) Except as provided in Subsection (11)(c), "representative" means the same as
66 that term is defined in Section 78B-3-403.
67 (b) "Representative" includes:
68 (i) a parent of a child regardless of whether the parent is the custodial or noncustodial
69 parent;
70 (ii) a legal guardian of a child;
71 (iii) a person designated to make decisions on behalf of a patient under a power of
72 attorney, an advanced health care directive, or a similar legal document;
73 (iv) a default surrogate as defined in Section 75-2a-108; and
74 (v) if the patient is deceased, the personal representative of the patient's estate or the
75 patient's heirs as defined in Sections 75-1-201 and 78B-3-105.
76 (c) "Representative" does not include a parent of a child if the parent's parental rights
77 have been terminated by a court.
78 (12) "State" means the same as that term is defined in Section 63G-7-102.
79 Section 2. Section 78B-3-451 is enacted to read:
80 78B-3-451. Medical candor process.
81 In accordance with this part, a health care provider may engage an affected party in a
82 process where the health care provider and any other health care provider notified in
83 Subsection 78B-3-452(1)(b) that chooses to participate in the process that:
84 (1) conducts an investigation into an adverse event involving a patient and the health
85 care provided to the patient;
86 (2) communicates information to the affected party regarding information gathered
87 during an investigation described in Subsection (1);
88 (3) communicates to the affected party the steps that the health care provider will take
89 to prevent future occurrences of the adverse event; and
90 (4) determines whether to make an offer of compensation to the affected party for the
91 adverse event.
92 Section 3. Section 78B-3-452 is enacted to read:
93 78B-3-452. Notice of medical candor process.
94 (1) If a health care provider wishes to engage an affected party in a medical candor
95 process, the health care provider shall:
96 (a) provide a written notice described in Subsection (2) to the affected party within 365
97 days after the day on which the health care provider knew of the adverse event involving a
98 patient;
99 (b) provide a written notice, in a timely manner, to any other health care provider
100 involved in the adverse event that invites the health care provider to participate in a medical
101 candor process; and
102 (c) inform, in a timely manner, any health care provider described in Subsection (1)(b)
103 of an affected party's decision of whether to participate in a medical candor process.
104 (2) A written notice under Subsection (1)(a) shall:
105 (a) include an explanation of:
106 (i) the patient's right to receive a copy of the patient's medical records related to the
107 adverse event; and
108 (ii) the patient's right to authorize the release of the patient's medical records related to
109 the adverse event to any third party;
110 (b) include a statement regarding the affected party's right to seek legal counsel at the
111 affected party's expense and to have legal counsel present throughout a medical candor process;
112 (c) notify the affected party that there are time limitations for a malpractice action
113 against a health care provider and that a medical candor process does not alter or extend the
114 time limitations for a malpractice action against a health care provider;
115 (d) if the health care provider is a public employee or a governmental entity, notify the
116 affected party that participation in a medical candor process does not alter or extend the
117 deadline for filing the notice of claim required under Section 63G-7-401;
118 (e) notify the affected party that if the affected party chooses to participate in a medical
119 candor process with a health care provider:
120 (i) any communication, material, or information created for or during the medical
121 candor process, including a communication to participate in the medical candor process, is
122 confidential, not discoverable, and inadmissible as evidence in a judicial, administrative, or
123 arbitration proceeding arising out of the adverse event; and
124 (ii) a party to the medical candor process may not record any communication without
125 the mutual consent of all parties to the medical candor process; and
126 (f) advise the affected party that the affected party, the health care provider, and any
127 other person that participates in a medical candor process must agree, in writing, to the terms
128 and conditions of the medical candor process in order to participate.
129 (3) If, after receiving a written notice, an affected party wishes to participate in a
130 medical candor process, the affected party must agree, in writing, to the terms and conditions
131 provided in the written notice described in Subsection (2).
132 (4) If an affected party agrees to participate in a medical candor process, the affected
133 party and the health care provider may include another person in the medical candor process if:
134 (a) the person receives written notice in accordance with this section; and
135 (b) the person agrees, in writing, to the terms and conditions provided in the written
136 notice described in Subsection (2).
137 Section 4. Section 78B-3-453 is enacted to read:
138 78B-3-453. Nonparticipating health care providers -- Offer of compensation --
139 Payment.
140 (1) If any communications, materials, or information in any form during a medical
141 candor process involve a health care provider that was notified under Subsection
142 78B-3-451(1)(b) but the health care provider is not participating in the medical candor process,
143 a participating health care provider:
144 (a) may provide only materials or information from the medical record to the affected
145 party regarding any health care provided by the nonparticipating health care provider;
146 (b) may not characterize, describe, or evaluate health care provided or not provided by
147 the nonparticipating health care provider;
148 (c) may not attribute fault, blame, or responsibility for the adverse event to the
149 nonparticipating health care provider; and
150 (d) shall inform the affected party of the limitations and requirements described in
151 Subsections (1)(a), (b), and (c) on any communications, materials, or information made or
152 provided by the participating health care provider in regard to a nonparticipating health care
153 provider.
154 (2) (a) If a health care provider determines that no offer of compensation is warranted
155 during a medical candor process, the health care provider may orally communicate that
156 decision to the affected party.
157 (b) If a health care provider determines that an offer of compensation is warranted
158 during a medical candor process, the health care provider shall provide the affected party with a
159 written offer of compensation.
160 (3) If a health care provider makes an offer of compensation to an affected party during
161 a medical candor process and the affected party is not represented by legal counsel, the health
162 care provider shall:
163 (a) advise the affected party of the affected party's right to seek legal counsel, at the
164 affected party's expense, regarding the offer of compensation; and
165 (b) notify the affected party that the affected party may be legally required to repay
166 medical and other expenses that were paid by a third party, including private health insurance,
167 Medicare, or Medicaid.
168 (4) (a) All parties to an offer of compensation shall negotiate the form of the relevant
169 documents.
170 (b) As a condition of an offer of compensation under this section, a health care
171 provider may require an affected party to:
172 (i) execute any document that is necessary to carry out an agreement between the
173 parties regarding the offer of compensation; and
174 (ii) if court approval is required for compensation to a minor, obtain court approval for
175 the offer of compensation.
176 (5) If an affected party did not present a written claim or demand for payment before
177 the affected party accepts and receives an offer of compensation as part of a medical candor
178 process, the payment of compensation to the affected party is not a payment resulting from:
179 (a) a written claim or demand for payment; or
180 (b) a professional liability claim or a settlement for purposes of Sections 58-67-302,
181 58-67-302.7, 58-68-302, and 58-71-302.
182 Section 5. Section 78B-3-454 is enacted to read:
183 78B-3-454. Confidentiality and effect of medical candor process -- Recording of
184 medical candor process -- Exception for deidentified information or data.
185 (1) Except as provided in Subsections (2), (3), and (4), all communications, materials,
186 and information in any form specifically created for or during a medical candor process,
187 including the findings or conclusions of the investigation and any offer of compensation, are
188 confidential and privileged in any administrative, judicial, or arbitration proceeding.
189 (2) Any communication, material, or information in any form that is made or provided
190 in the ordinary course of business, including a medical record or a business record, that is
191 otherwise discoverable or admissible and is not specifically created for or during a medical
192 candor process is not privileged by the use or disclosure of the communication, material, or
193 information during a medical candor process.
194 (3) (a) Any information that is required to be documented in a patient's medical record
195 under state or federal law is not privileged by the use or disclosure of the information during a
196 medical candor process.
197 (b) Information described in Subsection (3)(a) does not include an individual's mental
198 impressions, conclusions, or opinions that are formed outside the course and scope of the
199 patient's care and treatment and are used or disclosed in a medical candor process.
200 (4) (a) Any communication, material, or information in any form that is provided to an
201 affected party before the affected party's written agreement to participate in a medical candor
202 process is not privileged by the use or disclosure of the communication, material, or
203 information during a medical candor process.
204 (b) Any communication, material, or information described in Subsection (4)(a) does
205 not include a written notice described in Section 78B-3-452.
206 (5) A communication or offer of compensation made in preparation for or during a
207 medical candor process does not constitute an admission of liability.
208 (6) Nothing in this part alters or limits the confidential, privileged, or protected nature
209 of communications, information, memoranda, work product, documents, and other materials
210 under other provisions of law.
211 (7) (a) Notwithstanding Section 77-23a-4, a party to a medical candor process may not
212 record any communication without the mutual consent of all parties to the medical candor
213 process.
214 (b) A recording made without mutual consent of all parties to the medical candor
215 process may not be used for any purpose.
216 (8) (a) Notwithstanding any other provision of law, any communication, material, or
217 information created for or during a medical candor process:
218 (i) is not subject to reporting requirements by a health care provider; and
219 (ii) does not create a reporting requirement for a health care provider.
220 (b) If there are reporting requirements independent of, and supported by, information or
221 evidence other than any communication, material, or information created for or during a
222 medical candor process, the reporting shall proceed as if there were no communication,
223 material, or information created for or during the medical candor process.
224 (c) This Subsection (8) does not release an individual or a health care provider from
225 complying with a reporting requirement.
226 (9) (a) A health care provider that participates in a medical candor process may provide
227 deidentified information or data about the adverse incident to an agency, company, or
228 organization for the purpose of research, education, patient safety, quality of care, or
229 performance improvement.
230 (b) Disclosure of deidentified information or data under Subsection (9)(a):
231 (i) does not constitute a waiver of a privilege or protection of any communication,
232 material, or information created for or during a medical candor process as provided in this
233 section or any other provision of law; and
234 (ii) is not a violation of the confidentiality requirements of this section.
235 Section 6. Revisor instructions.
236 The Legislature intends that the Office of Legislative Research and General Counsel, in
237 preparing the Utah Code database for publication, not enroll this bill if H.J.R. 13, Joint
238 Resolution Amending Court Rules of Procedure and Evidence to Address the Medical Candor
239 Process, does not pass.