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Rule 409.?Payment of Medical and Similar Expenses;Expressions of Apology.


(a)   Evidence of furnishing,promising to pay, or offering to pay medical, hospital, or similar expensesresulting from an injury is not admissible to prove liability for the injury.


(b)   Evidence of unswornstatements, affirmations, gestures, or conduct made to a patient or a personassociated with the patient by a defendant that expresses the following is notadmissible in a malpractice action against a health care provider or anemployee of a health care provider to prove liability for an injury;


(b)(1)   apology, sympathy, commiseration,condolence, compassion, or general sense of benevolence; or


(b)(2)   a description of thesequence of events relating to the unanticipated outcome of medical care or thesignificance of events.



Effectivedate May 1, 2010



2011Advisory Committee Note. The language of section (a) of this rule hasbeen amended as part of the restyling of the Evidence Rules to make themmore easily understood and to make style and terminology consistent throughoutthe rules. These changes are intended to be stylisticonly. There is no intent to change any result in any ruling on evidenceadmissibility.


Thelanguage of section (b), promulgated by the Utah Legislature in 2011 (HJR 38),is unchanged.


Original Advisory CommitteeNote. There was no comparable rule under Utah Rules of Evidence (1971) but formerRules 52 and 53 seemed to encompass the same restrictions. Utah Code ???78-27-29, 78-27-30 and 31-1-15 (1953) are superseded by this rule.


Legislative Note.? In 2010 the Utah Legislature amended Rule409 by a two-thirds vote in both houses adding paragraph (b) and making relatedchanges. In 2011 the Legislature further amended the rule by a two-thirds votein both houses to make it follow more closely Utah Code ? 78B-3-422.


Theintent and purpose of amending the rule with paragraph (b) is to encourageexpressions of apology, empathy, and condolence and the disclosure of facts andcircumstances related to unanticipated outcomes in the provision of health carein an effort to facilitate the timely and satisfactory resolution of patientconcerns arising from unanticipated outcomes in the provision of health care.Patient records are not statements made to patients, and therefore are not inadmissible under this rule.