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Rule 409. Payment of medical and similar expenses;expressions of apology


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


(b)   Evidence of unsworn statements, affirmations, gestures,or conduct made to a patient or a person associated with the patient by adefendant that expresses the following is not admissible in a malpracticeaction against a health care provider or an employee of a health care providerto prove liability for an injury;


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


(2)   a description of the sequence of eventsrelating to the unanticipated outcome of medical care or the significance ofevents.



2011 Advisory Committee Note. The language of section (a) of thisrule has been amended as part of the restyling of the Evidence Rules to makethem more easily understood and to make style and terminology consistentthroughout the rules. These changes are intended to be stylistic only. There isno intent to change any result in any ruling on evidence admissibility.


The language of section (b), promulgated by the UtahLegislature in 2011 (HJR 38), is unchanged.




There was no comparable rule underUtah Rules of Evidence (1971) but former Rules 52 and 53 seemed to encompassthe same restrictions. Utah Code Annotated, Sections 78-27-29, 78-27-30 and31-1-15 (1953) are superseded by this rule.




In 2010 the Utah Legislature amendedRule 409 by a two-thirds vote in both houses adding paragraph (b) and makingrelated changes. In 2011 the Legislature further amended the rule by atwo-thirds vote in both houses to make it follow more closely Utah Code Ann.Sec. 78B-3-422.


The intent and purpose of amending therule with paragraph (b) is to encourage expressions of apology, empathy, and condolenceand the disclosure of facts and circumstances related to unanticipated outcomesin the provision of health care in an effort to facilitate the timely andsatisfactory resolution of patient concerns arising from unanticipated outcomesin the provision of health care. Patient records are not statements made topatients, and therefore are not inadmissible under this rule.


Effective date. House Joint Resolution38 takes effect upon approval by a constitutional two-thirds vote of allmembers elected to each house. [March 8, 2011]