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[Utah Code Table of Contents]
[TITLE 78. Table of Contents]
78-14-1 Short title of act.
This act shall be known and may be cited as the "Utah
Health Care Malpractice Act."
1976
78-14-2 Legislative findings and declarations - Purpose of act.
The legislature finds and declares that the number of suits and claims for damages and the amount of judgments and settlements arising from health care has increased greatly in recent years. Because of these increases the insurance industry has substantially increased the cost of medical malpractice insurance. The effect of increased insurance premiums and increased claims is increased health care cost, both through the health care providers passing the cost of premiums to the patient and through the provider's practicing defensive medicine because he views a patient as a potential adversary in a lawsuit. Further, certain health care providers are discouraged from continuing to provide services because of the high cost and possible unavailability of malpractice insurance.
In view of these recent trends and with the intention of alleviating the adverse effects which these trends are producing in the public's health care system, it is necessary to protect the public interest by enacting measures designed to encourage private insurance companies to continue to provide health-related malpractice insurance while at the same time establishing a mechanism to ensure the availability of insurance in the event that it becomes unavailable from private companies.
In enacting this act, it is the purpose of the legislature
to provide a reasonable time in which actions may be commenced
against health care providers while limiting that time to
a specific period for which professional liability insurance
premiums can be reasonably and accurately calculated; and
to provide other procedural changes to expedite early evaluation
and settlement of claims.
1976
78-14-3 Definitions.
As used in this chapter:
(1) "Audiologist" means a person licensed to practice audiology under Title 58, Chapter 41, Speech-language Pathology and Audiology Licensing Act.
(2) "Certified social worker" means a person licensed to practice as a certified social worker under Section 58-60-305 .
(3) "Chiropractic physician" means a person licensed to practice chiropractic under Title 58, Chapter 73, Chiropractic Physician Practice Act.
(4) "Clinical social worker" means a person licensed to practice as a clinical social worker under Section 58-60-305 .
(5) "Commissioner" means the commissioner of insurance as provided in Section 31A-2-102 .
(6) "Dental hygienist" means a person licensed to practice dental hygiene as defined in Section 58-69-102 .
(7) "Dentist" means a person licensed to practice dentistry as defined in Section 58-69-102 .
(8) "Division" means the Division of Occupational and Professional Licensing created in Section 58-1-103 .
(9) "Future damages" includes damages for future medical treatment, care or custody, loss of future earnings, loss of bodily function, or future pain and suffering of the judgment creditor.
(10) "Health care" means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement.
(11) "Health care facility" means general acute hospitals, specialty hospitals, home health agencies, hospices, nursing care facilities, assisted living facilities, birthing centers, ambulatory surgical facilities, small health care facilities, health care facilities owned or operated by health maintenance organizations, and end stage renal disease facilities.
(12) "Health care provider" includes any person, partnership, association, corporation, or other facility or institution who causes to be rendered or who renders health care or professional services as a hospital, health care facility, physician, registered nurse, licensed practical nurse, nurse-midwife, dentist, dental hygienist, optometrist, clinical laboratory technologist, pharmacist, physical therapist, podiatric physician, psychologist, chiropractic physician, naturopathic physician, osteopathic physician, osteopathic physician and surgeon, audiologist, speech-language pathologist, clinical social worker, certified social worker, social service worker, marriage and family counselor, practitioner of obstetrics, or others rendering similar care and services relating to or arising out of the health needs of persons or groups of persons and officers, employees, or agents of any of the above acting in the course and scope of their employment.
(13) "Hospital" means a public or private institution licensed under Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act.
(14) "Licensed practical nurse" means a person licensed to practice as a licensed practical nurse as provided in Section 58-31b-301 .
(15) "Malpractice action against a health care provider" means any action against a health care provider, whether in contract, tort, breach of warranty, wrongful death, or otherwise, based upon alleged personal injuries relating to or arising out of health care rendered or which should have been rendered by the health care provider.
(16) "Marriage and family therapist" means a person licensed to practice as a marriage therapist or family therapist under Section 58-60-405 and Section 58-60-305 .
(17) "Naturopathic physician" means a person licensed to practice naturopathy as defined in Section 58-71-102 .
(18) "Nurse-midwife" means a person licensed to engage in practice as a nurse midwife under Section 58-44a-301 .
(19) "Optometrist" means a person licensed to practice optometry under Title 58, Chapter 16a, Utah Optometry Practice Act.
(20) "Osteopathic physician" means a person licensed to practice osteopathy under Title 58, Chapter 68, Utah Osteopathic Medical Practice Act.
(21) "Patient" means a person who is under the care of a health care provider, under a contract, express or implied.
(22) "Pharmacist" means a person licensed to practice pharmacy as provided in Section 58-17a-301 .
(23) "Physical therapist" means a person licensed to practice physical therapy under Title 58, Chapter 24a, Physical Therapist Practice Act.
(24) "Physician" means a person licensed to practice medicine and surgery under Title 58, Chapter 67, Utah Medical Practice Act.
(25) "Podiatric physician" means a person licensed to practice podiatry under Title 58, Chapter 5a, Podiatric Physician Licensing Act.
(26) "Practitioner of obstetrics" means a person licensed to practice as a physician in this state under Title 58, Chapter 67, Utah Medical Practice Act, or under Title 58, Chapter 68, Utah Osteopathic Medical Practice Act.
(27) "Psychologist" means a person licensed under Title 58, Chapter 61, Psychologist Licensing Act, to practice psychology as defined in Section 58-61-102 .
(28) "Registered nurse" means a person licensed to practice professional nursing as provided in Section 58-31b-301 .
(29) "Representative" means the spouse, parent, guardian, trustee, attorney-in-fact, or other legal agent of the patient.
(30) "Social service worker" means a person licensed to practice as a social service worker under Section 58-60-205 .
(31) "Speech-language pathologist" means a person licensed to practice speech-language pathology under Title 58, Chapter 41, Speech-language Pathology and Audiology Licensing Act.
(32) "Tort" means any legal wrong, breach of duty, or
negligent or unlawful act or omission proximately causing
injury or damage to another.
2002
78-14-4 Statute of limitations - Exceptions - Application.
(1) No malpractice action against a health care provider may be brought unless it is commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs, but not to exceed four years after the date of the alleged act, omission, neglect or occurrence, except that:
(a) In an action where the allegation against the health care provider is that a foreign object has been wrongfully left within a patient's body, the claim shall be barred unless commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered, the existence of the foreign object wrongfully left in the patient's body, whichever first occurs; and
(b) In an action where it is alleged that a patient has been prevented from discovering misconduct on the part of a health care provider because that health care provider has affirmatively acted to fraudulently conceal the alleged misconduct, the claim shall be barred unless commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence, should have discovered the fraudulent concealment, whichever first occurs.
(2) The provisions of this section shall apply to all
persons, regardless of minority or other legal disability
under Section
78-12-36
or any other provision of the law, and shall
apply retroactively to all persons, partnerships, associations
and corporations and to all health care providers and to
all malpractice actions against health care providers based
upon alleged personal injuries which occurred prior to the
effective date of this act; provided, however, that any action
which under former law could have been commenced after the
effective date of this act may be commenced only within the
unelapsed portion of time allowed under former law; but any
action which under former law could have been commenced more
than four years after the effective date of this act may
be commenced only within four years after the effective date
of this act.
1979
78-14-4.5 Amount of award reduced by amounts of collateral sources available to plaintiff - No reduction where subrogation right exists - Collateral sources defined - Procedure to preserve subrogation rights - Evidence admissible - Exceptions.
(1) In all malpractice actions against health care providers as defined in Section 78-14-3 in which damages are awarded to compensate the plaintiff for losses sustained, the court shall reduce the amount of such award by the total of all amounts paid to the plaintiff from all collateral sources which are available to him; however, there shall be no reduction for collateral sources for which a subrogation right exists as provided in this section nor shall there be a reduction for any collateral payment not included in the award of damages. Upon a finding of liability and an awarding of damages by the trier of fact, the court shall receive evidence concerning the total amounts of collateral sources which have been paid to or for the benefit of the plaintiff or are otherwise available to him. The court shall also take testimony of any amount which has been paid, contributed, or forfeited by, or on behalf of the plaintiff or members of his immediate family to secure his right to any collateral source benefit which he is receiving as a result of his injury, and shall offset any reduction in the award by such amounts. No evidence shall be received and no reduction made with respect to future collateral source benefits except as specified in Subsection (4).
(2) For purposes of this section "collateral source" means payments made to or for the benefit of the plaintiff for:
(a) medical expenses and disability payments payable under the United States Social Security Act, any federal, state, or local income disability act, or any other public program, except the federal programs which are required by law to seek subrogation;
(b) any health, sickness, or income replacement insurance, automobile accident insurance that provides health benefits or income replacement coverage, and any other similar insurance benefits, except life insurance benefits available to the plaintiff, whether purchased by the plaintiff or provided by others;
(c) any contract or agreement of any person, group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services, except benefits received as gifts, contributions, or assistance made gratuitously; and
(d) any contractual or voluntary wage continuation plan provided by employers or any other system intended to provide wages during a period of disability.
(3) To preserve subrogation rights for amounts paid or received prior to settlement or judgment, a provider of collateral sources shall serve at least 30 days before settlement or trial of the action a written notice upon each health care provider against whom the malpractice action has been asserted. The written notice shall state the name and address of the provider of collateral sources, the amount of collateral sources paid, the names and addresses of all persons who received payment, and the items and purposes for which payment has been made.
(4) Evidence is admissible of government programs that provide payments or benefits available in the future to or for the benefit of the plaintiff to the extent available irrespective of the recipient's ability to pay. Evidence of the likelihood or unlikelihood that such programs, payments, or benefits will be available in the future is also admissible. The trier of fact may consider such evidence in determining the amount of damages awarded to a plaintiff for future expenses.
(5) A provider of collateral sources is not entitled to
recover the amounts of such benefits from a health care provider,
the plaintiff, or any other person or entity as reimbursement
for collateral source payments made prior to settlement or
judgment, including any payments made under Title 26, Chapter
19, Medical Benefits Recovery Act, except to the extent that
subrogation rights to amounts paid prior to settlement or
judgment are preserved as provided in this section. All policies
of insurance providing benefits affected by this section
are construed in accordance with this section.
2001
78-14-5 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 shall be presumed that what the health care provider did was either expressly or impliedly authorized to be done. For a patient to recover damages from a health care provider in an action based upon the provider's failure to obtain informed consent, the patient must prove the following:
(a) that a provider-patient relationship existed between the patient and health care provider;
(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 causing the 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 the health care rendered after having been fully informed as to all facts relevant to the decision to give consent. In determining what a reasonable, prudent person in the patient's position would do under the circumstances, the finder of fact shall use the viewpoint of the patient before health care was provided and before the occurrence of any personal injuries alleged to have arisen from said health care; and
(g) the unauthorized part of the health care rendered was the proximate cause of personal injuries suffered by the patient.
(2) It shall be a defense to any malpractice action against a health care provider based upon 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 commonly known to the public;
(c) the patient stated, prior to receiving the health care complained of, that he would accept the health care involved regardless of the risk; or that he did not want to be informed of the 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 the health care provider reasonably believed that additional disclosures could be expected to have a substantial and adverse effect on the patient's condition; or
(e) the patient or his representative executed a written consent which sets forth the nature and purpose of the intended health care and which contains a declaration that the patient accepts the risk of substantial and serious harm, if any, in hopes of obtaining desired beneficial results of health care and which acknowledges that health care providers involved have explained his condition and the proposed health care in a satisfactory manner and that all questions asked about the health care and its attendant risks have been answered in a manner satisfactory to the patient or his representative; such written consent shall be a defense to an action against a health care provider based upon failure to obtain informed consent unless the patient proves that the person giving the consent lacked capacity to consent or shows by clear and convincing proof that the execution of the written consent was induced by the defendant's affirmative acts of fraudulent misrepresentation or fraudulent omission to state material facts.
(3) Nothing contained in this act shall be construed to prevent any person 18 years of age or over from refusing to consent to health care for his own person upon personal or religious grounds.
(4) The following persons are authorized and empowered to consent to any health care not prohibited by law:
(a) any parent, whether an adult or a minor, for his minor child;
(b) any married person, for a spouse;
(c) any person temporarily standing in loco parentis, whether formally serving or not, for the minor under his care and any guardian for his ward;
(d) any person 18 years of age or over for his or her parent who is unable by reason of age, 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 her pregnancy or childbirth;
(g) in the absence of a parent, any adult for his minor brother or sister; and
(h) in the absence of a parent, any grandparent for his minor grandchild.
(5) No person who in good faith consents or authorizes
health care treatment or procedures for another as provided
by this act shall be subject to civil liability.
2001
78-14-6 Writing required as basis for liability for breach of guarantee, warranty, contract or assurance of result.
No liability shall be imposed upon any health care provider
on the basis of an alleged breach of guarantee, warranty,
contract or assurance of result to be obtained from any health
care rendered unless the guarantee, warranty, contract or
assurance is set forth in writing and signed by the health
care provider or an authorized agent of the provider.
1976
78-14-7 Ad damnum clause prohibited in complaint.
No dollar amount shall be specified in the prayer of a
complaint filed in a malpractice action against a health
care provider. The complaint shall merely pray for such damages
as are reasonable in the premises.
1976
78-14-7.1 Limitation of award of noneconomic damages in malpractice actions.
(1) In a malpractice action against a health care provider, an injured plaintiff may recover noneconomic losses to compensate for pain, suffering, and inconvenience. The amount of damages awarded for noneconomic loss may not exceed:
(a) for a cause of action arising before July 1, 2001, $250,000;
(b) for a cause of action arising on or after July 1, 2001 and before July 1, 2002, the limitation is adjusted for inflation to $400,000; and
(c) for a cause of action arising on or after July 1, 2002, the $400,000 limitation described in Subsection (1)(b) shall be adjusted for inflation as provided in Subsection (2).
(2) (a) Beginning July 1, 2002 and each July 1 thereafter, the limit for damages under Subsection (1)(c) shall be adjusted for inflation by the state treasurer.
(b) By July 15 of each year, the state treasurer shall:
(i) certify the inflation-adjusted limit calculated under this Subsection (2); and
(ii) inform the Administrative Office of the Courts of the certified limit.
(c) The amount resulting from Subsection (2)(a) shall:
(i) be rounded to the nearest $10,000; and
(ii) apply to a cause of action arising on or after the date the annual adjustment is made.
(3) As used in this section, "inflation" means the seasonally adjusted consumer price index for all urban consumers as published by the Bureau of Labor Statistics of the United States Department of Labor.
(4) The limit under Subsection (1) does not apply to awards
of punitive damages.
2001
78-14-7.5 Limitation on attorney's contingency fee in malpractice action.
(1) In any malpractice action against a health care provider as defined in Section 78-14-3 , an attorney shall not collect a contingent fee for representing a client seeking damages in connection with or arising out of personal injury or wrongful death caused by the negligence of another which exceeds 33-1/3% of the amount recovered.
(2) This limitation applies regardless of whether the
recovery is by settlement, arbitration, judgment, or whether
appeal is involved.
1985
78-14-8 Notice of intent to commence action.
No malpractice action against a health care provider may be initiated unless and until the plaintiff gives the prospective defendant or his executor or successor, at least ninety days' prior notice of intent to commence an action. Such notice shall include a general statement of the nature of the claim, the persons involved, the date, time and place of the occurrence, the circumstances thereof, specific allegations of misconduct on the part of the prospective defendant, the nature of the alleged injuries and other damages sustained. Notice may be in letter or affidavit form executed by the plaintiff or his attorney. Service shall be accomplished by persons authorized and in the manner prescribed by the Utah Rules of Civil Procedure for the service of the summons and complaint in a civil action or by certified mail, return receipt requested, in which case notice shall be deemed to have been served on the date of mailing. Such notice shall be served within the time allowed for commencing a malpractice action against a health care provider. If the notice is served less than ninety days prior to the expiration of the applicable time period, the time for commencing the malpractice action against the health care provider shall be extended to 120 days from the date of service of notice.
This section shall, for purposes of determining its retroactivity,
not be construed as relating to the limitation on the time
for commencing any action, and shall apply only to causes
of action arising on or after April 1, 1976. This section
shall not apply to third party actions, counterclaims or
crossclaims against a health care provider.
1979
78-14-9 Professional liability insurance coverage for providers - Insurance commissioner may require joint underwriting authority.
If the commissioner finds after a hearing that in any
part of this state any professional liability insurance coverage
for health care providers is not readily available in the
voluntary market, and that the public interest requires,
he may by regulation promulgate and implement plans to provide
insurance coverage through all insurers issuing professional
liability policies and individual and group accident and
sickness policies providing medical, surgical or hospital
expense coverage on either a prepaid or an expense incurred
basis, including personal injury protection and medical expense
coverage issued incidental to liability insurance policies.
1976
78-14-9.5 Periodic payment of future damages in malpractice actions.
(1) As used in this section:
(a) "Future damages" means a judgment creditor's damages for future medical treatment, care or custody, loss of future earnings, loss of bodily function, or future pain and suffering.
(b) "Periodic payments" means the payment of money or delivery of other property to the judgment creditor at such intervals as ordered by the court.
(2) In any malpractice action against a health care provider, as defined in Section 78-14-3 , the court shall, at the request of any party, order that future damages which equal or exceed $100,000, less amounts payable for attorney's fees and other costs which are due at the time of judgment, shall be paid by periodic payments rather than by a lump sum payment.
(3) In rendering a judgment which orders the payment of future damages by periodic payments, the court shall order periodic payments to provide a fair correlation between the sustaining of losses and the payment of damages. Lost future earnings shall be paid over the judgment creditor's work life expectancy. The court shall also order, when appropriate, that periodic payments increase at a fixed rate, equal to the rate of inflation which the finder of fact used to determine the amount of future damages, or as measured by the most recent Consumer Price Index applicable to Utah for all goods and services. The present cash value of all periodic payments shall equal the fact finder's award of future damages, less any amount paid for attorney's fees and costs. The present cash value of periodic payments shall be determined by discounting the total amount of periodic payments projected over the judgment creditor's life expectancy, by the rate of interest which the finder of fact used to reduce the amount of future damages to present value, or the rate of interest available at the time of trial on one year U.S. Government Treasury Bills. Before periodic payments of future damages may be ordered, the court shall require a judgment debtor to post security which assures full payment of those damages. Security for payment of a judgment of periodic payments may be in one or more of the following forms:
(a) a bond executed by a qualified insurer;
(b) an annuity contract executed by a qualified insurer;
(c) evidence of applicable and collectable liability insurance with one or more qualified insurers;
(d) an agreement by one or more qualified insurers to guarantee payment of the judgment; or
(e) any other form of security approved by the court.
Security which complies with this section may also serve as a supersedeas bond, where one is required.
(4) A judgment which orders payment of future damages by periodic payments shall specify the recipient or recipients of the payments, the dollar amount of the payments, the interval between payments, and the number of payments or the period of time over which payments shall be made. Those payments may only be modified in the event of the death of the judgment creditor.
(5) If the court finds that the judgment debtor, or the assignee of his obligation to make periodic payments, has failed to make periodic payments as ordered by the court, it shall, in addition to the required periodic payments, order the judgment debtor or his assignee to pay the judgment creditor all damages caused by the failure to make payments, including court costs and attorney's fees.
(6) The obligation to make periodic payments for all future damages, other than damages for loss of future earnings, shall cease upon the death of the judgment creditor. Damages awarded for loss of future earnings shall not be reduced or payments terminated by reason of the death of the judgment creditor, but shall be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately prior to his death. In that case the court which rendered the original judgment may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages in accordance with this section.
(7) If security is posted in accordance with Subsection
(3), and approved by a final judgment entered under this
section, the judgment is considered to be satisfied, and
the judgment debtor on whose behalf the security is posted
shall be discharged.
1992
78-14-10 Actions under Utah Governmental Immunity Act.
The provisions of this act shall apply to malpractice
actions against health care providers which are brought under
the Utah Governmental Immunity Act insofar as they are applicable;
provided, however, that this act shall in no way affect the
requirements for filing notices of claims, times for commencing
actions and limitations on amounts recoverable under the
Utah Governmental Immunity Act.
1976
78-14-11 Act not retroactive - Exception.
The provisions of this act, with the exception of the
provisions relating to the limitation on the time for commencing
an action, shall not apply to injuries, death or services
rendered which occurred prior to the effective date of this
act.
1976
78-14-12 Division to provide panel - Exemption - Procedures - Statute of limitations tolled - Composition of panel - Expenses - Division authorized to set license fees.
(1) (a) The division shall provide a hearing panel in alleged medical liability cases against health care providers as defined in Section 78-14-3 , except dentists.
(b) (i) The division shall establish procedures for prelitigation consideration of medical liability claims for damages arising out of the provision of or alleged failure to provide health care.
(ii) The division may establish rules necessary to administer the process and procedures related to prelitigation hearings and the conduct of prelitigation hearings in accordance with Sections 78-14-12 through 78-14-16 .
(c) The proceedings are informal, nonbinding, and are not subject to Title 63, Chapter 46b, Administrative Procedures Act, but are compulsory as a condition precedent to commencing litigation.
(d) Proceedings conducted under authority of this section are confidential, privileged, and immune from civil process.
(2) (a) The party initiating a medical liability action shall file a request for prelitigation panel review with the division within 60 days after the service of a statutory notice of intent to commence action under Section 78-14-8 .
(b) The request shall include a copy of the notice of intent to commence action. The request shall be mailed to all health care providers named in the notice and request.
(3) (a) The filing of a request for prelitigation panel review under this section tolls the applicable statute of limitations until the earlier of 60 days following the division's issuance of an opinion by the prelitigation panel, or 60 days following the termination of jurisdiction by the division as provided in this subsection. The division shall send any opinion issued by the panel to all parties by regular mail.
(b) (i) The division shall complete a prelitigation hearing under this section within 180 days after the filing of the request for prelitigation panel review, or within any longer period as agreed upon in writing by all parties to the review.
(ii) If the prelitigation hearing has not been completed within the time limits established in Subsection (3)(b)(i), the division has no further jurisdiction over the matter subject to review and the claimant is considered to have complied with all conditions precedent required under this section prior to the commencement of litigation.
(c) (i) The claimant and any respondent may agree by written stipulation that no useful purpose would be served by convening a prelitigation panel under this section.
(ii) When the stipulation is filed with the division, the division shall within ten days after receipt enter an order divesting itself of jurisdiction over the claim, as it concerns the stipulating respondent, and stating that the claimant has complied with all conditions precedent to the commencement of litigation regarding the claim.
(4) The division shall provide for and appoint an appropriate panel or panels to hear complaints of medical liability and damages, made by or on behalf of any patient who is an alleged victim of medical liability. The panels are composed of:
(a) one member who is a resident lawyer currently licensed and in good standing to practice law in this state and who shall serve as chairman of the panel, who is appointed by the division from among qualified individuals who have registered with the division indicating a willingness to serve as panel members, and a willingness to comply with the rules of professional conduct governing lawyers in the state of Utah, and who has completed division training regarding conduct of panel hearings;
(b) (i) one member who is a licensed health care provider listed under Section 78-14-3 , who is practicing and knowledgeable in the same specialty as the proposed defendant, and who is appointed by the division in accordance with Subsection (5); or
(ii) in claims against only hospitals or their employees, one member who is an individual currently serving in a hospital administration position directly related to hospital operations or conduct that includes responsibility for the area of practice that is the subject of the liability claim, and who is appointed by the division; and
(c) a lay panelist who is not a lawyer, doctor, hospital employee, or other health care provider, and who is a responsible citizen of the state, selected and appointed by the division from among individuals who have completed division training with respect to panel hearings.
(5) (a) Each person listed as a health care provider in Section 78-14-3 and practicing under a license issued by the state, is obligated as a condition of holding that license to participate as a member of a medical liability prelitigation panel at reasonable times, places, and intervals, upon issuance, with advance notice given in a reasonable time frame, by the division of an Order to Participate as a Medical Liability Prelitigation Panel Member.
(b) A licensee may be excused from appearance and participation as a panel member upon the division finding participation by the licensee will create an unreasonable burden or hardship upon the licensee.
(c) A licensee whom the division finds failed to appear and participate as a panel member when so ordered, without adequate explanation or justification and without being excused for cause by the division, may be assessed an administrative fine not to exceed $5,000.
(d) A licensee whom the division finds intentionally or repeatedly failed to appear and participate as a panel member when so ordered, without adequate explanation or justification and without being excused for cause by the division, may be assessed an administrative fine not to exceed $5,000, and is guilty of unprofessional conduct.
(e) All fines collected under Subsections (5)(c) and (d) shall be deposited in the Physicians Education Fund created in Section 58-67a-1 .
(6) Each person selected as a panel member shall certify, under oath, that he has no bias or conflict of interest with respect to any matter under consideration.
(7) Members of the prelitigation hearing panels shall receive per diem compensation and travel expenses for attending panel hearings as established by rules of the division.
(8) (a) In addition to the actual cost of administering the licensure of health care providers, the division may set license fees of health care providers within the limits established by law equal to their proportionate costs of administering prelitigation panels.
(b) The claimant bears none of the costs of administering
the prelitigation panel except under Section
78-14-16
.
2002
78-14-13 Proceedings - Authority of panel - Rights of parties to proceedings.
(1) No record of the proceedings is required and all evidence, documents, and exhibits are returned to the parties or witnesses who provided the evidence, documents, and exhibits at the end of the proceedings upon the request of the parties or witnesses who provided the evidence.
(2) The division may issue subpoenas for medical records directly related to the claim of medical liability in accordance with division rule and in compliance with the following:
(a) the subpoena shall be prepared by the requesting party in proper form for issuance by the division; and
(b) the subpoena shall be accompanied by:
(i) an affidavit prepared by the person requesting the subpoena attesting to the fact the medical record subject to subpoena is believed to be directly related to the medical liability claim to which the subpoena is related; or
(ii) by a written release for the medical records to be provided to the person requesting the subpoena, signed by the individual who is the subject of the medical record or by that individual's guardian or conservator.
(3) Per diem reimbursement to panel members and expenses incurred by the panel in the conduct of prelitigation panel hearings shall be paid by the division. Expenses related to subpoenas are paid by the requesting party, including witness fees and mileage.
(4) The proceedings are informal and formal rules of evidence are not applicable. There is no discovery or perpetuation of testimony in the proceedings, except upon special order of the panel, and for good cause shown demonstrating extraordinary circumstances.
(5) (a) A party is entitled to attend, personally or with counsel, and participate in the proceedings, except upon special order of the panel and unanimous agreement of the parties. The proceedings are confidential and closed to the public.
(b) No party has the right to cross-examine, rebut, or demand that customary formalities of civil trials and court proceedings be followed. The panel may, however, request special or supplemental participation of some or all parties in particular respects.
(c) Communications between the panel and the parties, except the testimony of the parties on the merits of the dispute, are disclosed to all other parties.
(6) The division shall appoint a panel to consider the claim and set the matter for panel review as soon as practicable after receipt of a request.
(7) Parties may be represented by counsel in proceedings
before a panel.
1994
78-14-14 Decision and recommendations of panel - No judicial or other review.
The panel shall render its opinion in writing not later than 30 days after the end of the proceedings. The panel shall determine on the basis of the evidence whether each claim against each health care provider has merit or has no merit and, if meritorious, whether the conduct complained of resulted in harm to the claimant.
There is no judicial or other review or appeal of the
panel's decision or recommendations.
1985
78-14-15 Evidence of proceedings not admissible in subsequent action - Panelist may not be compelled to testify - Immunity of panelist from civil liability - Information regarding professional conduct.
(1) Evidence of the proceedings conducted by the medical review panel and its results, opinions, findings, and determinations are not admissible as evidence in an action subsequently brought by the claimant in a court of competent jurisdiction.
(2) No panelist may be compelled to testify in a civil action subsequently filed with regard to the subject matter of the panel's review. A panelist has immunity from civil liability arising from participation as a panelist and for all communications, findings, opinions, and conclusions made in the course and scope of duties prescribed by this section.
(3) Nothing in this chapter may be interpreted to prohibit
the division from considering any information contained in
a statutory notice of intent to commence action, request
for prelitigation panel review, or written findings of a
panel with respect to the division's determining whether
a licensee engaged in unprofessional or unlawful conduct.
1994
78-14-16 Proceedings considered a binding arbitration hearing upon written agreement of parties - Compensation to members of panel.
Upon written agreement by all parties, the proceeding
may be considered a binding arbitration hearing and proceed
under Title 78, Chapter 31a, except for the selection of
the panel, which is done as set forth in Subsection
78-14-12
(4). If the proceeding is considered an arbitration
proceeding, the parties are equally responsible for compensation
to the members of the panel for services rendered.
1985
78-14-17 Arbitration agreements.
(1) After May 2, 1999, for a binding arbitration agreement between a patient and a health care provider to be validly executed or, if the requirements of this Subsection (1) have not been previously met on at least one occasion, renewed:
(a) the patient shall be given, in writing and by verbal explanation, the following information on:
(i) the requirement that the patient must arbitrate a claim instead of having the claim heard by a judge or jury;
(ii) the role of an arbitrator and the manner in which arbitrators are selected under the agreement;
(iii) the patient's responsibility, if any, for arbitration-related costs under the agreement;
(iv) the right of the patient to decline to enter into the agreement and still receive health care if Subsection (2) applies;
(v) the automatic renewal of the agreement each year unless the agreement is canceled in writing before the renewal date;
(vi) the right of the patient to have questions about the arbitration agreement answered; and
(vii) the right of the patient to rescind the agreement within 30 days of signing the agreement; and
(b) the agreement shall require that:
(i) one arbitrator be collectively selected by all persons claiming damages;
(ii) one arbitrator be selected by the health care provider;
(iii) a third arbitrator be jointly selected by all persons claiming damages and the health care provider from a list of individuals approved as arbitrators by the state or federal courts of Utah;
(iv) all parties waive the requirement of Section 78-14-12 to appear before a hearing panel in a malpractice action against a health care provider;
(v) the patient be given the right to rescind the agreement within 30 days of signing the agreement; and
(vi) the term of the agreement be for one year and that the agreement be automatically renewed each year unless the agreement is canceled in writing by the patient or health care provider before the renewal date.
(2) Notwithstanding Subsection (1), a patient may not be denied health care of any kind from the emergency department of a general acute hospital, as defined in Section 26-21-2 , on the sole basis that the patient or a person described in Subsection (5) refused to enter into a binding arbitration agreement with a health care provider.
(3) A written acknowledgment of having received a written and verbal explanation of a binding arbitration agreement signed by or on behalf of the patient shall be a defense to a claim that the patient did not receive a written and verbal explanation of the agreement as required by Subsection (1) unless the patient:
(a) proves that the person who signed the agreement lacked the capacity to do so; or
(b) shows by clear and convincing evidence that the execution of the agreement was induced by the health care provider's affirmative acts of fraudulent misrepresentation or fraudulent omission to state material facts.
(4) The requirements of Subsection (1) do not apply to a claim governed by a binding arbitration agreement that was executed or renewed before May 3, 1999.
(5) A legal guardian or a person described in Subsection 78-14-5 (4), except a person temporarily standing in loco parentis, may execute or rescind a binding arbitration agreement on behalf of a patient.
(6) This section does not apply to any arbitration agreement
that is subject to the Federal Arbitration Act, 9 U.S.C.
Sec. 1 et seq.
2003
