State Codes and Statutes
Statutes > Utah > Title-78b > Chapter-03 > 78b-3-40678B-3-406. Failure to obtain informed consent -- Proof required of patient --Defenses -- Consent to health care.
(1) When a person submits to health care rendered by a health care provider, it ispresumed that actions taken by the health care provider are either expressly or impliedlyauthorized to be done. For a patient to recover damages from a health care provider in an actionbased upon the provider's failure to obtain informed consent, the patient must prove thefollowing:
(a) that a provider-patient relationship existed between the patient and health careprovider;
(b) the health care provider rendered health care to the patient;
(c) the patient suffered personal injuries arising out of the health care rendered;
(d) the health care rendered carried with it a substantial and significant risk of causingthe patient serious harm;
(e) the patient was not informed of the substantial and significant risk;
(f) a reasonable, prudent person in the patient's position would not have consented to thehealth care rendered after having been fully informed as to all facts relevant to the decision togive consent; and
(g) the unauthorized part of the health care rendered was the proximate cause of personalinjuries suffered by the patient.
(2) In determining what a reasonable, prudent person in the patient's position would dounder the circumstances, the finder of fact shall use the viewpoint of the patient before healthcare was provided and before the occurrence of any personal injuries alleged to have arisen fromsaid health care.
(3) It shall be a defense to any malpractice action against a health care provider basedupon 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 commonlyknown to the public;
(c) the patient stated, prior to receiving the health care complained of, that he wouldaccept the health care involved regardless of the risk; or that he did not want to be informed ofthe 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 thehealth care provider reasonably believed that additional disclosures could be expected to have asubstantial and adverse effect on the patient's condition; or
(e) the patient or his representative executed a written consent which sets forth the natureand purpose of the intended health care and which contains a declaration that the patient acceptsthe risk of substantial and serious harm, if any, in hopes of obtaining desired beneficial results ofhealth care and which acknowledges that health care providers involved have explained hiscondition and the proposed health care in a satisfactory manner and that all questions asked aboutthe health care and its attendant risks have been answered in a manner satisfactory to the patientor his representative.
(4) The written consent shall be a defense to an action against a health care providerbased upon failure to obtain informed consent unless the patient proves that the person giving theconsent 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 fraudulentmisrepresentation or fraudulent omission to state material facts.
(5) This act may not be construed to prevent any person 18 years of age or over fromrefusing to consent to health care for his own person upon personal or religious grounds.
(6) Except as provided in Section 76-7-304.5, the following persons are authorized andempowered 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, forthe 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 ofage, 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 herpregnancy or childbirth;
(g) in the absence of a parent, any adult for the adult's minor brother or sister; and
(h) in the absence of a parent, any grandparent for the grandparent's minor grandchild.
(7) A person who in good faith consents or authorizes health care treatment orprocedures for another as provided by this act may not be subject to civil liability.
Renumbered and Amended by Chapter 3, 2008 General Session
