Utah Law Developments
| Publication year | 2022 |
| Pages | 24 |
Utah Law Developments
“He’s going to be all right” – Privileges, Evidence, and Candor in Provider-Patient Communications
by Taylor Kordsiemon & Austin Westerberg
In the (criminally underrated) sitcom Arrested Development, the character Buster Bluth is rushed to the hospital after a vicious seal attack. The rest of the Bluth family anxiously awaits updates concerning Buster’s condition. Finally, the doctor approaches the family and says, “Buster is going to be all right.” The family sighs with relief and gratitude. The doctor, confused at the family’s positive attitude, continues, “Buster lost his left hand. He’s going to be all right.”
It is possible Arrested Development exaggerated a bit, but it is no secret that communicating with patients and their family members is one of the most difficult aspects of a physician’s job. One factor inhibiting such communications is physicians’ fear that what they say will be used against them in a subsequent malpractice action. To help alleviate that problem, the Utah Legislature recently enacted the Utah Medical Candor Act, House Bill 344, which is set to have a significant impact on Utah’s healthcare system; how hospitals, doctors, and patients govern themselves in the aftermath of an adverse medical event; and what health care provider communications can enter evidence in subsequent litigation. See Utah Code Ann. §§ 78B-3-450 to -454.
The Medical Candor Act (the Act) builds and expands on a body of Utah law intended to facilitate open communication among health care providers and patients by limiting the admissibility of certain medical records in legal proceedings. To understand the Act and how it fits with Utah’s other evidentiary rules, this article will proceed in several parts. First, it will discuss Utah’s version of what is commonly referred to as an “I’m Sorry” law or “apology” statute. Second, it will discuss Utah’s peer- and care-review privileges and their application. And third, it will describe the Act and how it relates to Utah’s apology statute and the peer- and care-review privileges.
Utah’s Apology Statute
Generally speaking, “I’m Sorry” laws or “apology” statutes refer to evidentiary rules that make expressions of sympathy from a health care provider inadmissible in malpractice actions to prove liability. Utah has not one, but two apology statutes located at Utah Code Section 78B-3-422 and Rule 409 of the Utah Rules of Evidence (because the two provisions are substantively identical, they are hereinafter collectively referred to as “Utah’s apology statute” or the “apology statute”). Utah’s apology statute prohibits admission of the following types of communications from a medical-malpractice defendant for the purpose of proving liability: (1) statements of apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence; and (2) descriptions of the sequence of events relating to the unanticipated outcome of medical care or the significance of events.
Although Utah’s apology statute appears broad at first glance, the Utah Court of Appeals significantly limited its scope in Lawrence v. MountainStar Healthcare, 2014 UT App 40, 320 P.3d 1037. In that case, the court determined that an “admission of error” is not inherent in the definition of “apology” and, therefore, is not inadmissible as a statement of apology. Id. ¶ 28. The court similarly concluded that admissions of fault are not unambiguously proscribed as descriptions of events or their significance. Id. ¶ 29. After analyzing legislative history, the court held that the apology statute cannot exclude admissions of fault from evidence. Id. ¶¶ 30–33.
No Utah appellate court has considered the scope of Utah’s apology statute since Lawrence, but both the reasoning of Lawrence and subsequent events have given rise to questions in its wake.
First, the Lawrence court’s cursory conclusion, made without citation to any supporting authority, that descriptions of events or their significance “may or may not include an admission of fault” does little to explain that prong of the apology statute. See id. ¶ 29. If an admission of fault cannot meet the definition of a description of the significance of events giving rise to an adverse medical outcome, then it is unclear what sort of...
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