(a )Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to 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 a defendant that expresses the following is not admissible in a malpractice action against a health care provider or an employee 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 the sequence of events relating to the unanticipated outcome of medical care or the significance of events.

(c) Evidence of any communication, information, material, or conduct created for or during a medical candor process under Utah Code Title 78B, Chapter 3, Part 4a, Utah Medical Candor Act, is not admissible in a malpractice action against a health care provider or an employee of a health care provider to prove liability for an injury, including:

(c)(1) any findings or conclusions of an investigation under Utah Code section 78B-3-451 that are shared with a patient or a representative of a patient; or

(c)(2) any offer of compensation made to the patient or a representative of a patient during or as part of the medical candor process.

(d) The terms defined in Utah Code section 78B-3-450 apply to paragraph (c).

2011 Advisory Committee Note. The language of section (a) of this rule has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make class and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

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

Original Advisory Committee Note. There was no comparable rule under Utah Rules of Evidence (1971) but former Rules 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 Utah Code §§§ 78-27-29, 78-27-30 and 31-1-15 (1953) are superseded by this rule.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 Rule 409 by a two-thirds vote in both houses adding paragraph (b) and making related changes. In 2011 the Legislature further amended the rule by a two-thirds vote in both houses to make it follow more closely Utah Code § 78B-3-422.

The intent and purpose of amending the rule with paragraph (b) is to encourage expressions of apology, empathy, and condolence and the disclosure of facts and circumstances related to unanticipated outcomes in the provision of health care in an effort to facilitate the timely and satisfactory resolution of patient concerns 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.