78B-3-406.  Failure to obtain informed consent — Proof required of patient — Defenses — Consent to health care.

(1) 

Terms Used In Utah Code 78B-3-406

  • Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
  • Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Guardian: includes a person who:Utah Code 68-3-12.5
  • Health care: means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement. See Utah Code 78B-3-403
  • Health care provider: includes any person, partnership, association, corporation, or other facility or institution who causes to be rendered or who renders health care or professional services as a hospital, health care facility, physician, physician assistant, registered nurse, licensed practical nurse, nurse-midwife, licensed direct-entry midwife, dentist, dental hygienist, optometrist, clinical laboratory technologist, pharmacist, physical therapist, physical therapist assistant, podiatric physician, psychologist, chiropractic physician, naturopathic physician, osteopathic physician, osteopathic physician and surgeon, audiologist, speech-language pathologist, clinical social worker, certified social worker, social service worker, marriage and family counselor, practitioner of obstetrics, licensed athletic trainer, or others rendering similar care and services relating to or arising out of the health needs of persons or groups of persons and officers, employees, or agents of any of the above acting in the course and scope of their employment. See Utah Code 78B-3-403
  • Malpractice action against a health care provider: means any action against a health care provider, whether in contract, tort, breach of warranty, wrongful death, or otherwise, based upon alleged personal injuries relating to or arising out of health care rendered or which should have been rendered by the health care provider. See Utah Code 78B-3-403
  • Patient: means a person who is under the care of a health care provider, under a contract, express or implied. See Utah Code 78B-3-403
  • Person: means :Utah Code 68-3-12.5
  • Representative: means the spouse, parent, guardian, trustee, attorney-in-fact, person designated to make decisions on behalf of a patient under a medical power of attorney, or other legal agent of the patient. See Utah Code 78B-3-403
  • State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
(a)  When a person submits to health care rendered by a health care provider, it is presumed that actions taken by the health care provider are either expressly or impliedly authorized to be done.

(b)  For a patient to recover damages from a health care provider in an action based upon the provider’s failure to obtain informed consent, the patient must prove the following:

(i)  that a provider-patient relationship existed between the patient and health care provider;

(ii)  the health care provider rendered health care to the patient;

(iii)  the patient suffered personal injuries arising out of the health care rendered;

(iv)  the health care rendered carried with it a substantial and significant risk of causing the patient serious harm;

(v)  the patient was not informed of the substantial and significant risk;

(vi)  a reasonable, prudent person in the patient’s position would not have consented to the health care rendered after having been fully informed as to all facts relevant to the decision to give consent; and

(vii)  the unauthorized part of the health care rendered was the proximate cause of personal injuries suffered by the patient.

(2)  In determining what a reasonable, prudent person in the patient’s position would do under the circumstances, the finder of fact shall use the viewpoint of the patient before health care was provided and before the occurrence of any personal injuries alleged to have arisen from said health care.

(3)  It shall be a defense to any malpractice action against a health care provider based upon alleged failure to obtain informed consent if:

(a)  the risk of the serious harm which the patient actually suffered was relatively minor;

(b)  the risk of serious harm to the patient from the health care provider was commonly known to the public;

(c)  the patient stated, prior to receiving the health care complained of, that he would accept the health care involved regardless of the risk; or that he did not want to be informed of the matters to which he would be entitled to be informed;

(d)  the health care provider, after considering all of the attendant facts and circumstances, used reasonable discretion as to the manner and extent to which risks were disclosed, if the health care provider reasonably believed that additional disclosures could be expected to have a substantial and adverse effect on the patient’s condition; or

(e)  the patient or the patient’s representative executed a written consent which sets forth the nature and purpose of the intended health care and which contains a declaration that the patient accepts the risk of substantial and serious harm, if any, in hopes of obtaining desired beneficial results of health care and which acknowledges that health care providers involved have explained the patient’s condition and the proposed health care in a satisfactory manner and that all questions asked about the health care and its attendant risks have been answered in a manner satisfactory to the patient or the patient’s representative.

(4)  The written consent shall be a defense to an action against a health care provider based upon failure to obtain informed consent unless the patient proves that the person giving the consent lacked capacity to consent or shows by clear and convincing evidence that the execution of the written consent was induced by the defendant‘s affirmative acts of fraudulent misrepresentation or fraudulent omission to state material facts.

(5)  This act may not be construed to prevent any person 18 years of age or over from refusing to consent to health care for the patient’s own person upon personal or religious grounds.

(6)  Except as provided in Section 76-7-304.5, the following persons are authorized and empowered to consent to any health care not prohibited by law:

(a)  any parent, whether an adult or a minor, for the parent’s minor child;

(b)  any married person, for a spouse;

(c)  any person temporarily standing in loco parentis, whether formally serving or not, for the minor under that person’s care and any guardian for the guardian’s ward;

(d)  any person 18 years of age or over for that person’s parent who is unable by reason of age, physical or mental condition, to provide such consent;

(e)  any patient 18 years of age or over;

(f)  any female regardless of age or marital status, when given in connection with her pregnancy or childbirth;

(g)  in the absence of a parent, any adult for the adult’s minor brother or sister;

(h)  in the absence of a parent, any grandparent for the grandparent’s minor grandchild;

(i)  an emancipated minor as provided in Section 78A-6-805;

(j)  a minor who has contracted a lawful marriage; and

(k)  an unaccompanied homeless minor, as that term is defined in the McKinney-Vento Homeless Assistance Act of 1987, Pub. L. 100-77, as amended, who is 15 years of age or older.

(7)  A person who in good faith consents or authorizes health care treatment or procedures for another as provided by this act may not be subject to civil liability.

(8)  Notwithstanding any other provision of this section, if a health care provider fails to comply with the requirement in Section 58-1-509, the health care provider is presumed to have lacked informed consent with respect to the patient examination, as defined in Section 58-1-509.

Amended by Chapter 346, 2019 General Session