Section 454 – Confidentiality and effect of medical candor process — Recording of medical candor process — Exception for deidentified information or data.

Effective 5/4/2022
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.

Enacted by Chapter 366, 2022 General Session