(1) If an adverse health-care incident occurs, a health-care provider involved in the adverse health-care incident, or the health-care provider jointly with the health facility involved in the adverse health-care incident, may provide the patient with written notice of the desire of the health-care provider, or of the health-care provider jointly with the health facility, to enter into an open discussion under this article 51. (2) A health-care provider or health facility that chooses to provide the notice specified in subsection (1) of this section shall send the notice within one hundred eighty days after the date on which the health-care provider knew, or through the use of diligence should have known, of the adverse health-care incident. The notice must include: (a) An explanation of the patient's right to receive a copy of the medical records related to the adverse health-care incident and of the patient's right to authorize the release of the patient's medical records related to the adverse health-care incident to any third party; (b) A statement regarding the patient's right to seek legal counsel and to have legal counsel present throughout the process specified in this article 51; (c) A copy of sections 13-80-102.5 and 13-80-112 with notice that the time for a patient to bring a lawsuit is limited and will not be extended merely by engaging in an open discussion under this article 51; (d) If the health-care provider or health facility is a public entity or a public employee, a copy of section 24-10-109, together with the statement that the deadline for filing the notice required under section 24-10-109 will not be extended by engaging in an open discussion under this article 51; (e) Notice that if the patient chooses to engage in an open discussion with the health-care provider or health facility, all communications made in the course of the discussion under this article 51, including communications regarding the initiation of an open discussion, are: (I) Privileged and confidential; (II) Not subject to discovery, subpoena, or other means of legal compulsion for release; and (III) Not admissible as evidence in a proceeding arising directly out of the adverse health-care incident, including a judicial, administrative, or arbitration proceeding; and (f) An advisement that communications, memoranda, work product, documents, and other materials that are otherwise subject to discovery and not prepared specifically for use in an open discussion under this section are not confidential. (3) (a) If the patient agrees in writing to engage in an open discussion under this article 51, the patient, health-care provider, or health facility engaged in the open discussion may include additional parties in the open discussion. (b) The health-care provider, or the health-care provider jointly with the health facility, involved in the adverse health-care incident shall advise all additional parties in writing of the nature of communications made in accordance with this article 51 as specified in section 25-51- 105. (c) Additional parties shall acknowledge the advisement in subsection (3)(b) of this section in writing. (d) The advisement provided in accordance with this subsection (3) must indicate that communications, memoranda, work product, documents, and other materials that are otherwise subject to discovery and not prepared specifically for use in an open discussion under this section are not confidential. (4) The health-care provider or health facility that agrees to engage in an open discussion may: (a) Investigate how the adverse health-care incident occurred and gather information regarding the medical care or treatment provided; (b) Disclose the results of the investigation to the patient; (c) Openly communicate to the patient the steps the health-care provider or health facility will take to prevent future occurrences of the adverse health-care incident; (d) Determine either of the following: (I) That no offer of compensation for the adverse health-care incident is warranted; or (II) That an offer of compensation for the adverse health-care incident is warranted. (5) If a health-care provider or health facility determines that no offer of compensation is warranted, the health-care provider or health facility shall orally communicate that decision with the patient. If a health-care provider or health facility determines that an offer of compensation is warranted, the health-care provider or health facility shall provide the patient with a written offer of compensation. (6) If a health-care provider or health facility makes an offer of compensation under subsection (5) of this section and the patient is not represented by legal counsel, the health-care provider or health facility shall: (a) Advise the patient of the patient's right to seek legal counsel regarding the offer of compensation; and (b) Provide notice that the patient may be legally required to repay medical and other expenses that were paid by a third party, including private health insurance, medicare, or medicaid. (7) Except for an offer of compensation under subsection (5) of this section, open discussions between the health-care provider or health facility and the patient about the compensation offered under subsection (5) of this section shall not be in writing.
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