Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 344 Third Substitute (2022GS)

Sponsor

Rep. Nelson, M.

Final action

Governor Signed 3/24/2022

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• defines terms;
• creates a medical candor process where a health care provider may investigate an injury, or suspected injury, associated with a health care process and may communicate information about the investigation to the patient and any representative of the patient;
• addresses written notice of a medical candor process;
• addresses an offer of compensation made as part of a medical candor process;
• addresses confidentiality, disclosure, and effect of communications, materials, or information that is created for or during a medical candor process;
• addresses the confidentiality of information from a patient's medical record that is used or disclosed in a medical candor process;
• addresses the confidentiality of any communication, material, or information provided to a patient or a representative of a patient before participation in a medical candor process;
• addresses the recording of communications during a medical candor process;
• addresses reporting requirements in relation to a medical candor process; and
• allows for the disclosure of deidentified information or data of an adverse event for certain purposes.

Every vote on this bill

Bill text

UTAH MEDICAL CANDOR ACT
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Merrill F. Nelson
Senate Sponsor: 
Michael S. Kennedy
LONG TITLE
General Description:
This bill enacts the Utah Medical Candor Act.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ creates a medical candor process where a health care provider may investigate an
injury, or suspected injury, associated with a health care process and may
communicate information about the investigation to the patient and any
representative of the patient;
▸ addresses written notice of a medical candor process;
▸ addresses an offer of compensation made as part of a medical candor process;
▸ addresses confidentiality, disclosure, and effect of communications, materials, or
information that is created for or during a medical candor process;
▸ addresses the confidentiality of information from a patient's medical record that is
used or disclosed in a medical candor process;
▸ addresses the confidentiality of any communication, material, or information
provided to a patient or a representative of a patient before participation in a
medical candor process;
▸ addresses the recording of communications during a medical candor process;
▸ addresses reporting requirements in relation to a medical candor process; and
▸ allows for the disclosure of deidentified information or data of an adverse event for
certain purposes.
Money Appropriated in this Bill:
None
Other Special Clauses:
This bill provides revisor instructions.
Utah Code Sections Affected:
ENACTS:
78B-3-450
, Utah Code Annotated 1953
78B-3-451
, Utah Code Annotated 1953
78B-3-452
, Utah Code Annotated 1953
78B-3-453
, Utah Code Annotated 1953
78B-3-454
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
78B-3-450
 is enacted to read:
Part 4a. Utah Medical Candor Act
 78B-3-450.
Definitions.
As used in this part:
(1) "Adverse event" means an injury or suspected injury that is associated with a health
care process rather than an underlying condition of a patient or a disease.
(2) "Affected party" means:
(a) a patient; and
(b) any representative of a patient.
(3) "Communication" means any written or oral communication created for or during a
medical candor process.
(4) "Governmental entity" means the same as that term is defined in Section
63G-7-102
.
(5) "Health care" means the same as that term is defined in Section 
78B-3-403
.
(6) "Health care provider" means the same as that term is defined in Section
78B-3-403
.
(7) "Malpractice action against a health provider" means the same as that term is
defined in Section 
78B-3-403
.
(8) "Medical candor process" means the process described in Section 
78B-3-451
.
(9) "Patient" means the same as that term is defined in Section 
78B-3-403
.
(10) "Public employee" means the same as the term "employee" as defined in Section
63G-7-102
.
(11) (a) Except as provided in Subsection (11)(c), "representative" means the same as
that term is defined in Section 
78B-3-403
.
(b) "Representative" includes:
(i) a parent of a child regardless of whether the parent is the custodial or noncustodial
parent;
(ii) a legal guardian of a child;
(iii) a person designated to make decisions on behalf of a patient under a power of
attorney, an advanced health care directive, or a similar legal document;
(iv) a default surrogate as defined in Section 
75-2a-108
; and
(v) if the patient is deceased, the personal representative of the patient's estate or the
patient's heirs as defined in Sections 
75-1-201
 and 
78B-3-105
.
(c) "Representative" does not include a parent of a child if the parent's parental rights
have been terminated by a court.
(12) "State" means the same as that term is defined in Section 
63G-7-102
.
Section 2. Section 
78B-3-451
 is enacted to read:
 78B-3-451.
Medical candor process.
In accordance with this part, a health care provider may engage an affected party in a
process where the health care provider and any other health care provider notified in
Subsection 
78B-3-452
(1)(b) that chooses to participate in the process that:
(1) conducts an investigation into an adverse event involving a patient and the health
care provided to the patient;
(2) communicates information to the affected party regarding information gathered
during an investigation described in Subsection (1);
(3) communicates to the affected party the steps that the health care provider will take
to prevent future occurrences of the adverse event; and
(4) determines whether to make an offer of compensation to the affected party for the
adverse event.
Section 3. Section 
78B-3-452
 is enacted to read:
 78B-3-452.
Notice of medical candor process.
(1) If a health care provider wishes to engage an affected party in a medical candor
process, the health care provider shall:
(a) provide a written notice described in Subsection (2) to the affected party within 365
days after the day on which the health care provider knew of the adverse event involving a
patient;
(b) provide a written notice, in a timely manner, to any other health care provider
involved in the adverse event that invites the health care provider to participate in a medical
candor process; and
(c) inform, in a timely manner, any health care provider described in Subsection (1)(b)
of an affected party's decision of whether to participate in a medical candor process.
(2) A written notice under Subsection (1)(a) shall:
(a) include an explanation of:
(i) the patient's right to receive a copy of the patient's medical records related to the
adverse event; and
(ii) the patient's right to authorize the release of the patient's medical records related to
the adverse event to any third party;
(b) include a statement regarding the affected party's right to seek legal counsel at the
affected party's expense and to have legal counsel present throughout a medical candor process;
(c) notify the affected party that there are time limitations for a malpractice action
against a health care provider and that a medical candor process does not alter or extend the
time limitations for a malpractice action against a health care provider;
(d) if the health care provider is a public employee or a governmental entity, notify the
affected party that participation in a medical candor process does not alter or extend the
deadline for filing the notice of claim required under Section 
63G-7-401
;
(e) notify the affected party that if the affected party chooses to participate in a medical
candor process with a health care provider:
(i) any communication, material, or information created for or during the medical
candor process, including a communication to participate in the medical candor process, is
confidential, not discoverable, and inadmissible as evidence in a judicial, administrative, or
arbitration proceeding arising out of the adverse event; and
(ii) a party to the medical candor process may not record any communication without
the mutual consent of all parties to the medical candor process; and
(f) advise the affected party that the affected party, the health care provider, and any
other person that participates in a medical candor process must agree, in writing, to the terms
and conditions of the medical candor process in order to participate.
(3) If, after receiving a written notice, an affected party wishes to participate in a
medical candor process, the affected party must agree, in writing, to the terms and conditions
provided in the written notice described in Subsection (2).
(4) If an affected party agrees to participate in a medical candor process, the affected
party and the health care provider may include another person in the medical candor process if:
(a) the person receives written notice in accordance with this section; and
(b) the person agrees, in writing, to the terms and conditions provided in the written
notice described in Subsection (2).
Section 4. Section 
78B-3-453
 is enacted to read:
 78B-3-453.
Nonparticipating health care providers -- Offer of compensation --
Payment.
(1) If any communications, materials, or information in any form during a medical
candor process involve a health care provider that was notified under Subsection
78B-3-451
(1)(b) but the health care provider is not participating in the medical candor process,
a participating health care provider:
(a) may provide only materials or information from the medical record to the affected
party regarding any health care provided by the nonparticipating health care provider;
(b) may not characterize, describe, or evaluate health care provided or not provided by
the nonparticipating health care provider;
(c) may not attribute fault, blame, or responsibility for the adverse event to the
nonparticipating health care provider; and
(d) shall inform the affected party of the limitations and requirements described in
Subsections (1)(a), (b), and (c) on any communications, materials, or information made or
provided by the participating health care provider in regard to a nonparticipating health care
provider.
(2) (a) If a health care provider determines that no offer of compensation is warranted
during a medical candor process, the health care provider may orally communicate that
decision to the affected party.
(b) If a health care provider determines that an offer of compensation is warranted
during a medical candor process, the health care provider shall provide the affected party with a
written offer of compensation.
(3) If a health care provider makes an offer of compensation to an affected party during
a medical candor process and the affected party is not represented by legal counsel, the health
care provider shall:
(a) advise the affected party of the affected party's right to seek legal counsel, at the
affected party's expense, regarding the offer of compensation; and
(b) notify the affected party that the affected party may be legally required to repay
medical and other expenses that were paid by a third party, including private health insurance,
Medicare, or Medicaid.
(4) (a) All parties to an offer of compensation shall negotiate the form of the relevant
documents.
(b) As a condition of an offer of compensation under this section, a health care
provider may require an affected party to:
(i) execute any document that is necessary to carry out an agreement between the
parties regarding the offer of compensation; and
(ii) if court approval is required for compensation to a minor, obtain court approval for
the offer of compensation.
(5) If an affected party did not present a written claim or demand for payment before
the affected party accepts and receives an offer of compensation as part of a medical candor
process, the payment of compensation to the affected party is not a payment resulting from:
(a) a written claim or demand for payment; or
(b) a professional liability claim or a settlement for purposes of Sections 
58-67-302
,
58-67-302.7
, 
58-68-302
, and 
58-71-302
.
Section 5. Section 
78B-3-454
 is enacted to read:
 78B-3-454.
Confidentiality and effect of medical candor process -- Recording of
medical candor process -- Exception for deidentified information or data.
(1) Except as provided in Subsections (2), (3), and (4), all communications, materials,
and information in any form specifically created for or during a medical candor process,
including the findings or conclusions of the investigation and any offer of compensation, are
confidential and privileged in any administrative, judicial, or arbitration proceeding.
(2) Any communication, material, or information in any form that is made or provided
in the ordinary course of business, including a medical record or a business record, that is
otherwise discoverable or admissible and is not specifically created for or during a medical
candor process is not privileged by the use or disclosure of the communication, material, or
information during a medical candor process.
(3) (a) Any information that is required to be documented in a patient's medical record
under state or federal law is not privileged by the use or disclosure of the information during a
medical candor process.
(b) Information described in Subsection (3)(a) does not include an individual's mental
impressions, conclusions, or opinions that are formed outside the course and scope of the
patient's care and treatment and are used or disclosed in a medical candor process.
(4) (a) Any communication, material, or information in any form that is provided to an
affected party before the affected party's written agreement to participate in a medical candor
process is not privileged by the use or disclosure of the communication, material, or
information during a medical candor process.
(b) Any communication, material, or information described in Subsection (4)(a) does
not include a written notice described in Section 
78B-3-452
.
(5) A communication or offer of compensation made in preparation for or during a
medical candor process does not constitute an admission of liability.
(6) Nothing in this part alters or limits the confidential, privileged, or protected nature
of communications, information, memoranda, work product, documents, and other materials
under other provisions of law.
(7) (a) Notwithstanding Section 
77-23a-4
, a party to a medical candor process may not
record any communication without the mutual consent of all parties to the medical candor
process.
(b) A recording made without mutual consent of all parties to the medical candor
process may not be used for any purpose.
(8) (a) Notwithstanding any other provision of law, any communication, material, or
information created for or during a medical candor process:
(i) is not subject to reporting requirements by a health care provider; and
(ii) does not create a reporting requirement for a health care provider.
(b) If there are reporting requirements independent of, and supported by, information or
evidence other than any communication, material, or information created for or during a
medical candor process, the reporting shall proceed as if there were no communication,
material, or information created for or during the medical candor process.
(c) This Subsection (8) does not release an individual or a health care provider from
complying with a reporting requirement.
(9) (a) A health care provider that participates in a medical candor process may provide
deidentified information or data about the adverse incident to an agency, company, or
organization for the purpose of research, education, patient safety, quality of care, or
performance improvement.
(b) Disclosure of deidentified information or data under Subsection (9)(a):
(i) does not constitute a waiver of a privilege or protection of any communication,
material, or information created for or during a medical candor process as provided in this
section or any other provision of law; and
(ii) is not a violation of the confidentiality requirements of this section.
Section 6. 
Revisor instructions.
The Legislature intends that the Office of Legislative Research and General Counsel, in
preparing the Utah Code database for publication, not enroll this bill if H.J.R. 13, Joint
Resolution Amending Court Rules of Procedure and Evidence to Address the Medical Candor
Process, does not pass.