(1) If an adverse health-care
incident occurs, a health-care provider involved in the adverse health-care incident,
or the health-care provider jointly with the health facility involved in the adverse
health-care incident, may provide the patient with written notice of the desire of the
health-care provider, or of the health-care provider jointly with the health facility, to
enter into an open discussion under this article 51.
(2) A health-care provider or health facility that chooses to provide the
notice specified in subsection (1) of this section shall send the notice within one
hundred eighty days after the date on which the health-care provider knew, or
through the use of diligence should have known, of the adverse health-care
incident. The notice must include:
(a) An explanation of the patient's right to receive a copy of the medical
records related to the adverse health-care incident and of the patient's right to
authorize the release of the patient's medical records related to the adverse health-care incident to any third party;
(b) A statement regarding the patient's right to seek legal counsel and to
have legal counsel present throughout the process specified in this article 51;
(c) A copy of sections 13-80-102.5 and 13-80-112 with notice that the time for
a patient to bring a lawsuit is limited and will not be extended merely by engaging
in an open discussion under this article 51;
(d) If the health-care provider or health facility is a public entity or a public
employee, a copy of section 24-10-109, together with the statement that the
deadline for filing the notice required under section 24-10-109 will not be extended
by engaging in an open discussion under this article 51;
(e) Notice that if the patient chooses to engage in an open discussion with
the health-care provider or health facility, all communications made in the course of
the discussion under this article 51, including communications regarding the
initiation of an open discussion, are:
(I) Privileged and confidential;
(II) Not subject to discovery, subpoena, or other means of legal compulsion
for release; and
(III) Not admissible as evidence in a proceeding arising directly out of the
adverse health-care incident, including a judicial, administrative, or arbitration
proceeding; and
(f) An advisement that communications, memoranda, work product,
documents, and other materials that are otherwise subject to discovery and not
prepared specifically for use in an open discussion under this section are not
confidential.
(3) (a) If the patient agrees in writing to engage in an open discussion under
this article 51, the patient, health-care provider, or health facility engaged in the
open discussion may include additional parties in the open discussion.
(b) The health-care provider, or the health-care provider jointly with the
health facility, involved in the adverse health-care incident shall advise all
additional parties in writing of the nature of communications made in accordance
with this article 51 as specified in section 25-51-105.
(c) Additional parties shall acknowledge the advisement in subsection (3)(b)
of this section in writing.
(d) The advisement provided in accordance with this subsection (3) must
indicate that communications, memoranda, work product, documents, and other
materials that are otherwise subject to discovery and not prepared specifically for
use in an open discussion under this section are not confidential.
(4) The health-care provider or health facility that agrees to engage in an
open discussion may:
(a) Investigate how the adverse health-care incident occurred and gather
information regarding the medical care or treatment provided;
(b) Disclose the results of the investigation to the patient;
(c) Openly communicate to the patient the steps the health-care provider or
health facility will take to prevent future occurrences of the adverse health-care
incident;
(d) Determine either of the following:
(I) That no offer of compensation for the adverse health-care incident is
warranted; or
(II) That an offer of compensation for the adverse health-care incident is
warranted.
(5) If a health-care provider or health facility determines that no offer of
compensation is warranted, the health-care provider or health facility shall orally
communicate that decision with the patient. If a health-care provider or health
facility determines that an offer of compensation is warranted, the health-care
provider or health facility shall provide the patient with a written offer of
compensation.
(6) If a health-care provider or health facility makes an offer of
compensation under subsection (5) of this section and the patient is not
represented by legal counsel, the health-care provider or health facility shall:
(a) Advise the patient of the patient's right to seek legal counsel regarding
the offer of compensation; and
(b) Provide notice that the patient may be legally required to repay medical
and other expenses that were paid by a third party, including private health
insurance, medicare, or medicaid.
(7) Except for an offer of compensation under subsection (5) of this section,
open discussions between the health-care provider or health facility and the patient
about the compensation offered under subsection (5) of this section shall not be in
writing.
Source: L. 2019: Entire article added, (SB 19-201), ch. 144, p. 1753, � 1,
effective July 1.