78B-3-453. Nonparticipating health care providers -- Offer of compensation -- Payment.

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

Effective 5/4/2022

(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-3-452(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.

(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.

(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 .

Enacted by Chapter 366 , 2022 General Session