Overview of Utah Health Care Malpractice Law

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In 1976, with the enactment of the Utah Health Care Malpractice Act, statutes were adopted governing the handling of medical malpractice actions against health care providers within the State of Utah. Since 1976, that Act has been frequently amended, with the most significant amendments being made in 1979 and 1986.

1. Negligence, Proximate Cause and Standard of Care.

Utah Code Ann., § 78B-3-403(17), states:

‘‘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.

The Utah Health Care Malpractice Act defines the term “health care provider” as follows:

78B-3-403(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, physician, registered nurse, licensed practical nurse, nurse-midwife, dentist, dental hygienist, optometrist, clinical laboratory technologist, pharmacist, physical therapist, podiatrist, psychologist, chiropractic physician, naturopathic physician, osteopathic physician, osteopathic physician and surgeon, audiologist, speech-language pathologist, certified social worker, social service worker, social service aide, 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.

The Utah courts have held that in order for a patient to recover in a malpractice action against a health care provider, it must be shown that the medical practitioner was negligent and that the negligence was a proximate cause of the injury to the patient. A health care provider-patient relationship creates a duty on the part of the health care provider to treat the patient within the acceptable standards of care. The term “standard of care” relates to the health care provider’s duty to exercise that degree of skill and learning ordinarily possessed and exercised, under similar circumstances, by other practitioners in his or her field of practice.

Expert testimony is required in all cases except those where the propriety of the treatment is within the common knowledge and experience of a lay person. The doctrine of “res ipsa loquitur” is also sometimes applied, meaning the negligence is so obvious as to speak for itself without requiring expert medical testimony.

2. Limitations on Actions Against Health Care Providers.

Limitations on actions against health care providers are governed by statutes enacted by the legislature. The Utah legislature has given certain protections to health care providers, which protections the Utah Supreme Court has subsequently eroded through its decisions. This is an active area of current litigation and is of critical concern to insurance carriers who write coverage for medical malpractice. If a statute of limitations is clearly defined and is of short duration, it creates less financial exposure for health care providers and their insurers.

The so-called “good samaritan” laws provided some of the earliest protection to individuals who voluntarily and without compensation assisted in emergencies. Utah’s “Good Samaritan Act,” is found in Utah Code Ann. § 78B-4-501.

A person who renders emergency care at or near the scene of an emergency, gratuitously and in good faith, is not liable for any civil damages or penalties as a result of any act or omission by the person rendering the emergency care, unless the person is grossly negligent or caused the emergency. . . .

Even stronger civil liability protection exists for health care providers; § 58-13-2 provides the following:

A person licensed under Title 58, Occupations and Professions, to practice as any of the following health care professionals, who is under no legal duty to respond, and who in good faith renders emergency care at the scene of an emergency gratuitously and in good faith, is not liable for any civil damages as a result of any acts or omissions by the person in rendering the emergency care.

Civil liability protection is also provided in § 26-8a-601 for instructions given in emergency medical treatment. This statute protects licensed physicians or licensed registered nurses who give instructions to personnel at the scene of an emergency, “unless the instructions were the result of gross negligence or willful misconduct.”

The Utah Legislature recently passed a bill that increases protection for Emergency Room Physicians against malpractice claims from patients, found in Utah Code Ann. § 58-13-2.5. Under the former law, a plaintiff was required prove alleged malpractice by a “preponderance of evidence.” The new measure raises this standard to require the plaintiff to prove the malpractice via “clear and convincing” evidence, providing extra protection to emergency room doctors due to the fact that federal laws require them to treat any patient, regardless of whether a past medical history is known. In cases where the doctor has a previous relationship with the patient and can access their records, this new higher standard does not apply.

The medical malpractice statute of limitations is found in Utah Code Ann. § 78B-3-404, and states, in part, as follows:

  • (1) A malpractice action against a health care provider shall be 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.
  • (2) Notwithstanding Subsection (1):
    • (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; or
    • (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. (This statute is “tolled” until age of majority for minors.)

 

3. Miscellaneous Procedural Requirements in Medical Malpractice Actions.

Utah Code Ann. § 78B-3-409, states that, “A dollar amount may not 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 circumstances.”

Utah Code Ann. § 78B-3-412, requires that a notice of intent to commence an action predate the filing of a complaint

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. . . .

The statute further notes that service may be by a legal process server or through certified mail, return receipt requested. If the notice is served less than 90 days prior to the expiration of the statute of limitations period, the time for commencing the malpractice action is extended to “120 days from the date of service of notice.”

In 1985, health care providers successfully lobbied the Utah legislature for a Pre-litigation hearing panel requirement for medical malpractice actions. Amendments to this system have subsequently been made. The hearings are handled by the Utah Department of Commerce and the regulations governing those hearings are found in Utah Code Ann. §§ 78B-3-416 through 78B-3-419. The hearings apply to all cases “filed after July 1, 1985,” excluding those brought against dentists. These provisions require a party initiating a medical malpractice action to file a request for pre-litigation panel review with the Department of Commerce within 60 days after the filing of a statutory notice of intent to commence an action. This request is to be mailed to all health care providers named in the notice and request. The filing of a request for pre-litigation panel tolls the applicable statute of limitations until 60 days following the issuance of an opinion by the pre-litigation panel. A three-member panel is appointed to listen to the case, and the panels are composed of an attorney, a lay person, and a health care provider practicing in the same specialty as the Respondent.

In May 2016, Section 78B-3-418 was returned to how it was in 2013, eliminating the requirement to go through a prelitigation hearing to allocate faulte to non-parties. This recent change is beneficial to the defense, and simplifies the process for allocating fault to non-parties.

The pre-litigation panel hearings are confidential and not binding. Also, no cross examination right exists, and no evidence from or reference to the hearing can be later used at trial. At present, the hearings must be held within one hundred-eighty days of its request. In 1997, the Legislature amended the statute (28-1412(3)(c)) to allow parties to waive a Pre-Litigation Hearing (if unanimous and in writing). We personally believe the panels to be beneficial and cost effective since they have served to resolve about one-third of the cases we have presented to the panel.

4. Statutes Governing Damages and Liability.

Utah Code Ann. § 78B-3-405, provides for a reduction from an award in a medical malpractice action for payments from certain “collateral sources.” These sources primarily include “medical expenses and disability payments payable under the United States Social Security Act, any federal, state or local income disability coverage, or any other public program, except the federal programs which are required by law to seek subrogation.” The sources may also include health, disability or accident insurance if not subject to subrogation. See Utah Code Ann. § 78B-3-405(3).

Since May 15, 2010, Utah has had a $450,000 non-economic damage cap in medical malpractice actions. This does not adjust for inflation.

Utah Code Ann. § 78B-3-410 states:

In a malpractice action against a healthcare provider, an injured plaintiff may recover non-economic 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 between July 1, 2001 and July 2, 2002, the limitation is adjusted for inflation to $400,000.

(c) For a cause of action arising on or after July 1, 2002, and before May 15, 2010 the $400,000 limitation is adjusted for inflation; and

(d) For a cause of action arising on or after May 15, 2010, $450,000.

In 2015, the Utah Supreme Court in Smith v. United States, held that “the limit on noneconomic damages in [the] Malpractice Act is unconstitutional as applied to cases of wrongful death.” This new case law will impact settlement evaluations in wrongful death cases.

Utah Code Ann. § 78B-3-411 places a limitation on attorney contingency fees in medical malpractice actions of “33 1/3% of the amount recovered.” This limitation applies regardless of whether the recovery occurs by settlement, arbitration, or judgment, or whether an appeal is involved.

In 1986, the Utah legislature also passed the Liability Reform Act which rejected the concept of joint and several liability among defendants. Utah Code Ann. § 78B-5-818.

5. Interest on Damages.

Utah Code Ann. § 78B-5-824 authorizes pre-judgment interest on the economic damages in personal injury judgments at a rate of 7.5%.

Post-judgment interest rates are governed by Utah Code Ann. § 15-1-4. The post judgment interest rates for current and previous years are as follows:

Calendar Year Post Judgment Interest Rate
2016 2.65%
2015 2.27%
2014 2.13%
2013 2.16%
2012 2.12%
2011 2.30%
2010 2.41%
2009 2.40%
2008 5.42%
2007 6.99%
2006 6.36%
2005 4.77%
2004 3.28%

6. Protections for Quality Assurance and Peer Review Information.

Utah Code Ann. §§ 26-25-1 through -5, deals with confidential information released by health care providers. Because of a strong public policy to promote improved health care through internal peer review and reporting, the statutes were enacted to classify such information as privileged from production in any legal proceeding.

These statutes protect from discovery in medical malpractice actions such things as incident reports and peer review summaries which otherwise could be incriminating on the issue of liability. For that reason, medical requests and treatment record subpoenas should not be construed as requiring production of these privileged documents.

7. Recent Updates in Utah Case Law.

Lawrence v. MountainStar Healthcare (Utah App. 2014)

The Lawrence Court stated that the Utah Apology statute prohibits introducing apologies but not statement of fault.

The Hospital’s statements to patient and her family, acknowledging that there had been an accident or complication and that “[w]e messed up” were statements of fault that did not fall within apology rule’s exclusion of statements, affirmations, or gestures of apology.

The apology statute, prohibting the introduction of statements of sympathy and apology made by health care providers after an unanticipated outcome of medical care, does not apply to exclude statements of fault.

Riggs v. Georgia-Pacific, LLC (Utah 2015)

The Utah Supreme Court held that heirs can bring a wrongful death claim against a party, even if decedent obtained a judgment or settlement against the same parties in a personal injury claim prior to his/her death.

The court held “wrongful death is an independent cause of action not barred by existence of a final judgment in the decedent’s underlying personal injury suit”.

This case impacts settlement evaluations. As a result, we have to prepare specialized releases to prevent multiple lawsuits on the same action.

Benda v. Roman Catholic Bishop (Utah 2016)

The Utah Supreme Court has created a new cause of action for “loss of filial consortium,” so that parents of a tortuously injured child can sue for harm to the parent-child relationship, in addition to other causes of action.

The Court suggests that the period of such loss extends from date of injury all the way through the parents’ lives, regardless of when the child reaches age of majority.

Legislative and Judicial Activity Re: Medical Malpractice in Utah, 2016 to Present

Constitutional Challenge to Prelitigation Process

Vega v. Salerno, a case we are involved in defending, may go up on appeal. Plaintiff’s counsel appears to be using the case to set up a constitutional challenge to Utah’s prelitigation process.

Utah Code requires plaintiffs to obtain a certificate of compliance issued by the Division of Occupational and Professional Licensing (DOPL) before filing a formal court complaint. In order to obtain such a certificate, a person must either (1) receive a “meritorious” opinion after a prelitigation hearing or (2) produce an “affidavit of merit” from a qualified medical professional asserting the merit of the potential plaintiff’s claims.

Plaintiff Vega filed an affidavit from an expert who asserted that the merits of plaintiff’s claims could not be determined without further discovery. DOPL deemed the affidavit inadequate and gave plaintiff time to file a satisfactory affidavit, which was not filed. Consequently, plaintiff did not obtain the certificate showing compliance with the prelitigation process required to bring a suit. Plaintiff filed a formal complaint anyway, and Defendants have moved to dismiss the suit, based upon plaintiff’s non-compliance with the affidavit-of-merit requirement.

The motion to dismiss has been fully briefed and submitted for decision, but the trial court has not yet ruled. It will likely grant Defendants motion, which plaintiff will likely follow with an appeal. The chances of success for such an appeal are unclear.

Amended Rule re: Medical Exams

On May 1, 2017, an amendment to Rule 35 of Utah’s Rules of Civil Procedure went into effect. The amendment requires the production of a report from all examiners who conduct court-ordered physical and mental examinations, whether or not they will be called as experts at trial. Reports are due within 60 days of the examination, or 7 days before the close of fact discovery, whichever is sooner.

The required report is expected to include the same type of content and observations that would be included in a medical record generated by a competent medical professional following an examination of a patient, but need not include other things required by Rule 26, which governs expert designations, depositions, and reports.

New Non-Patient Cause of Action

HB76 was introduced during the 2016 General Session of the Utah Legislature and signed into law March 25, 2016.

The bill added a malpractice cause of action for non-patients to Utah’s medical malpractice statute. Under the new law (which went into effect May 10, 2016), a non-patient must show that (1) he or she suffered an injury, (2) the injury was caused by an act or omission of the healthcare provider, and (3) the act or omission was conduct that “manifests a knowing and reckless indifference toward, and a disregard of, the injury suffered by the nonpatient plaintiff.”

The bill also repealed the provision of Utah’s medical malpractice statute that allowed any party to a malpractice action to request a prelitigation panel review of a non-party provider’s care in order to obtain a certificate of compliance (a prerequisite for filing a formal court complaint) for the purpose of allocating fault to that provider.

Filial Consortium Claims Are Now Recognized

In September 2016, the Utah Supreme Court held that parents of minor children are able to bring claims for relief for their own loss of consortium due to injuries to those children. See Benda v. Catholic Diocese of Salt Lake City, 2016 UT 37.

Civil Case Management Pilot Program

At the start of 2016, a new pilot program began for Tier 3 (and certain Tier 2) cases assigned to selected judges in the Third, Second, and Fourth Districts. The theory, drawn from experience in other jurisdictions, is that active judicial case management is vital to efficient litigation, particularly in complex cases. Select tier 3 cases are randomly assigned to the participating judges. These cases will involve lengthy and detailed pre-trial conferences, much like those done in federal court. Many attorneys stipulated around discovery rules in Tier 3 cases, and the rules committee decided that what was needed to streamline such cases was active judicial case management, not more rules. The program runs through December 31, 2017 and may lead to broader changes in Tier 3 litigation.

Ethics Opinion: No ex parte communications with plaintiff’s treating providers

On February 17, 2016, an ethics opinion was issued concerning a defense attorney’s ex parte communications with healthcare providers for the plaintiff (fact witnesses in the case). The defense attorney was reprimanded and sanctioned. The opinion made it clear that defense attorneys in medical malpractice cases are not to have ex parte communications with treating providers for the plaintiff.

Denial of Attempt to Amend Damages Tier of Complaint Following Verdict

On October 19, 2016, a district court judge in Summit County denied a plaintiff’s motion to amend the “Tier 2” damages allegation of the Complaint. The plaintiff initially put the case in the Tier 2 category, which limits damages to $300,000. At trial, the verdict exceeded $300,000, so the plaintiff tried to amend his pleading to make the case a Tier 3, which has no limit. The judge ruled that Utah procedural rules prevent post-verdict amendments and explained that it is fair to prohibit plaintiffs from gaining an advantage with reduced discovery before amending a cases tier following a favorable verdict.

(Note: the case was not a medical malpractice case, but the same principles would apply.)

Addendum: Federal Update

Protecting Access to Care Act of 2017

The U.S. House of Representatives just passed and the U.S. Senate is currently considering a federal tort reform bill (Protecting Access to Care Act of 2017). The bill establishes provisions governing health care lawsuits where coverage for the care was provided or subsidized by the federal government, including through a subsidy or tax benefit. The bill is intended to help lower the cost of health insurance by lessening the burden of medical lawsuits.

Among other things, the bill limits non-economic damages to $250,000, though juries may not be informed of this limitation. It also limits attorney fees and establishes a three-year statute of limitations or one year after the claimant discovers the injury, whichever occurs first. As future damages are concerned, the bill provides for periodic payments.

The bill is allegedly modeled after California’s Medical Injury Compensation Reform Act, which is claimed to have reduced California’s medical professional liability premiums, and Texas’ Medical Liability and Insurance Improvement Act.

ARBITRATION vs. LITIGATION

  1. Arbitration Legislation of 1999.

 

In 1999, the Utah Healthcare Malpractice Act was amended to include a section on arbitration § 78B-3-421 U.C.A. This was an attempt to have the Utah Legislature give a stamp of approval to arbitration while including aspects of law previously set forth by the Utah Supreme Court in the Paulos case. Under the 1999 statute for a binding arbitration agreement between a patient and a healthcare provider to be validly executed, a number of requirements were established; the patient must be given a written and verbal explanation of arbitration, the patient’s responsibility for related costs under the agreement must be disclosed, how the arbitrators would be selected must be described, and the right of the patient to decline to enter into the agreement and still receive healthcare must be clear. The patient also must be told of the right to rescind the document within the first thirty days.

From 1999 to 2003, arbitration agreements were increasingly used although very few actions were ever arbitrated. Rather than to face challenges to arbitration, they often were conducted pursuant to a “high-low agreement.” That is, plaintiffs were guaranteed a recovery in a set “low.” In return the patient could not receive more than the agreed upon “high.” Although this was a Solomon-type “split the baby” approach, it avoided legal challenges to arbitration and if a physician prevailed at the arbitration the “low” payment was not a reportable event on the National Practitioner Data Bank. The basis relied upon for not reporting the “low” to the NPDB is a one-page opinion dated June 19, 2000.
Efforts to Strengthen “Forced Arbitration” and to Permit Medical Care to be Declined.

 

Efforts by certain healthcare providers to strengthen arbitration agreements in 2003 proved problematic. IHC allegedly exercised “heavy handed corporate” tactics to force patients to arbitrate by the threat of declining medical care. Senate Bill 138 was signed into law by Governor Leavitt but was short-lived. This Bill gave a physician a right to take into account a patient’s willingness to enter into an arbitration agreement in deciding whether or not to establish or continue a relationship with a patient (except for emergency settings). A physician could also terminate a relationship with an existing patient who refused to sign an arbitration agreement as long as he did not abandon the patient by giving thirty days notice and by expressing a willingness to provide necessary medical services during those thirty days. This Bill went into effect May 5, 2003 at which time IHC allegedly began turning away patients in Salt Lake City and Bountiful who refused to sign mandatory arbitration agreements. Letters and editorials printed statewide were running about 2 to 1 against mandatory arbitration in general and about 5 to 1 against IHC in particular. An article resulted from the UMA dated February 10, 2004 “What Happened to Mandatory Arbitration” which traces the evolution of SB 245 which was a “compromise Bill submitted to the legislature to try to salvage medical arbitration.
Current Law Regarding Medical Arbitration.

 

IHC rescinded its forced arbitration policy after a highly publicized battle involving patient’s advocacy groups and trial lawyers. The law enacted in May 2003, which allowed doctors to refuse treatment to non-emergency patients unless they agreed that any malpractice claims would be resolved by arbitration instead of lawsuits, was abandoned. Utah’s restricted Arbitration Law, § 78B-3-421, provided two helpful changes to the statute; it removed the requirement of a verbal explanation to patients and it reduced the time to rescind from thirty to ten days. The efforts of plaintiffs’ groups to reduce the arbitrators from a three member panel to a one person panel were also defeated. The Utah Medical Association (UMA) proposed the use of three arbitrators, rather than one, for the following reasons: (1) more expertise on the panel is better than less; (2) parties can have greater confidence in the decision because it is not just one person’s opinion; and (3) arbitrators can reason, discuss, and decide difficult issues as a group rather than in a vacuum. Recently arbitration success and increased awards for patients has been observed. However, some healthcare providers argue that arbitration is still a quicker and cheaper solution that may curb the soaring costs of medical malpractice insurance. (The Utah Medical Association has some helpful guides for those who want to implement voluntary arbitration.)

  1. Arbitration Agreements Not Enforceable in Wrongful Death Actions.

In Bybee v. Abdulla, 189 P.3d 40, Utah 2008, the Utah Supreme Court held that an arbitration agreement between a physician and the decedent was not enforceable in wrongful death actions brought by non signatory family members of the decedent. This case has been interpreted to preclude physicians from enforcing arbitration agreements in wrongful death actions. In addition, Utah Plaintiff attorneys commonly cite dicta from the Bybee decision to support their contention that Utah’s Non-Economic Damage Cap does not apply to wrongful death actions; nevertheless, the Bybee decision never directly addressed the Damage Cap and its application to wrongful death actions remains valid Utah Law.

  1. Options Regarding Medical Arbitration.

 

In hindsight, the use of arbitration agreements from 1990 and until recently was not very effective due to the unsettled nature of the law and reluctance to enforce the agreements without a “high-low” compromise. Arbitration may be helpful for select specialties such as obstetrics and anesthesiology where jury verdicts in excess of policy limits are a possibility. Malpractice attorneys recently polled feel the panel composition is the greatest danger to the future of arbitration in Utah. One argued there were not enough experienced malpractice lawyers to serve on the panels and that over time they could be “corrupted” by knowing who “butters their bread” in giving them the greatest bulk of business for these cases. Arbitrators arguably remove the “emotion from the claims more than jurors;” and they are generally aware of the realities of insurance coverage and collectibility of judgments.

Utah is still a relatively conservative state, particularly in rural communities where it may be much more advantageous to litigate than to elect arbitration. That is, you lose any “home turf” advantage through arbitration. If trial is not desired, then mediation (non-binding) is always an alternative. It may be true that litigation may cost more (according to some studies) and take longer to complete; but jurors in Utah may still treat health care providers better than a panel of arbitrators. A lot depends upon the lawyer and the physician or entity. Some professional insurers have gone through the cycle of attempted arbitration in other states and now prefer jury trials.

Because statutory and case law is in constant change, if you have questions concerning medical malpractice issues, please feel free to contact our office.