78B-3-416.  Division to provide panel — Exemption — Procedures — Statute of limitations tolled — Composition of panel — Expenses — Division authorized to set license fees.

(1) 

Terms Used In Utah Code 78B-3-416

  • Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
  • Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
  • Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
  • Division: means the Division of Professional Licensing created in Section 58-1-103. See Utah Code 78B-3-403
  • 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. See Utah Code 78B-3-403
  • 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. See Utah Code 78B-3-403
  • 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, physician assistant, registered nurse, licensed practical nurse, nurse-midwife, licensed direct-entry midwife, dentist, dental hygienist, optometrist, clinical laboratory technologist, pharmacist, physical therapist, physical therapist assistant, 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, licensed athletic trainer, 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. See Utah Code 78B-3-403
  • Hospital: means a public or private institution licensed under 2. See Utah Code 78B-3-403
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Litigation: A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.
  • Patient: means a person who is under the care of a health care provider, under a contract, express or implied. See Utah Code 78B-3-403
  • Person: means :Utah Code 68-3-12.5
  • Precedent: A court decision in an earlier case with facts and law similar to a dispute currently before a court. Precedent will ordinarily govern the decision of a later similar case, unless a party can show that it was wrongly decided or that it differed in some significant way.
  • Process: means a writ or summons issued in the course of a judicial proceeding. See Utah Code 68-3-12.5
  • State: means the same as that term is defined in Section 63G-7-102. See Utah Code 78B-3-450
  • Statute: A law passed by a legislature.
  • Statute of limitations: A law that sets the time within which parties must take action to enforce their rights.
  • Writing: includes :Utah Code 68-3-12.5
(a)  The division shall provide a hearing panel in alleged medical liability cases against health care providers as defined in Section 78B-3-403, except dentists or dental care providers.

(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 78B-3-416 through 78B-3-420.

(c)  The proceedings are informal, nonbinding, and are not subject to Title 63G, Chapter 4, 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.

(e)  The division may not provide more than one hearing panel for each alleged medical liability case against a health care provider.

(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 78B-3-412.

(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)  As used in this Subsection (3):

(i)  “Court-appointed therapist” means a mental health therapist ordered by a court to provide psychotherapeutic treatment to an individual, a couple, or a family in a domestic case.

(ii)  “Domestic case” means a proceeding under:

(A)  Title 30, Chapter 3, Divorce;

(B)  Title 30, Chapter 4, Separate Maintenance;

(C)  Title 30, Chapter 5, Grandparents;

(D)  Title 30, Chapter 5a, Custody and Visitation for Individuals Other than Parents Act;

(E)  Title 78B, Chapter 7, Protective Orders and Stalking Injunctions;

(F)  Title 78B, Chapter 13, Utah Uniform Child Custody Jurisdiction and Enforcement Act; or

(G)  Title 78B, Chapter 15, Utah Uniform Parentage Act.

(iii)  “Mental health therapist” means the same as that term is defined in Section 58-60-102.

(b)  If a court appoints a court-appointed therapist in a domestic case, a party to the domestic case may not file a request for a prelitigation panel review for a malpractice action against the court-appointed therapist during the pendency of the domestic case, unless:

(i)  the party has requested that the court release the court-appointed therapist from appointment; and

(ii)  the court finds good cause to release the court-appointed therapist from the appointment.

(c)  If a party is prohibited from filing a request for a prelitigation panel review under Subsection (3)(b), the applicable statute of limitations tolls until the earlier of:

(i)  the court releasing the court-appointed therapist from appointment as described in Subsection (3)(b); or

(ii)  the court entering a final order in the domestic case.

(4) 

(a)  The filing of a request for prelitigation panel review under this section tolls the applicable statute of limitations until the later of:

(i)  60 days following the division’s issuance of:

(A)  an opinion by the prelitigation panel; or

(B)  a certificate of compliance under Section 78B-3-418; or

(ii)  the expiration of the time for holding a hearing under Subsection (4)(b)(ii).

(b)  The division shall:

(i)  send any opinion issued by the panel to all parties by regular mail; and

(ii)  complete a prelitigation hearing under this section within:

(A)  180 days after the filing of the request for prelitigation panel review; or

(B)  any longer period as agreed upon in writing by all parties to the review.

(c)  If the prelitigation hearing has not been completed within the time limits established in Subsection (4)(b)(ii), the claimant shall:

(i)  file an affidavit of merit under the provisions of Section 78B-3-423; or

(ii)  file an affidavit with the division within 180 days of the request for pre-litigation review, in accordance with Subsection (4)(d), alleging that the respondent has failed to reasonably cooperate in scheduling the hearing.

(d)  If the claimant files an affidavit under Subsection (4)(c)(ii):

(i)  within 15 days of the filing of the affidavit under Subsection (4)(c)(ii), the division shall determine whether either the respondent or the claimant failed to reasonably cooperate in the scheduling of a pre-litigation hearing; and

(ii) 

(A)  if the determination is that the respondent failed to reasonably cooperate in the scheduling of a hearing, and the claimant did not fail to reasonably cooperate, the division shall, issue a certificate of compliance for the claimant in accordance with Section 78B-3-418; or

(B)  if the division makes a determination other than the determination in Subsection (4)(d)(ii)(A), the claimant shall file an affidavit of merit in accordance with Section 78B-3-423, within 30 days of the determination of the division under this Subsection (4).

(e) 

(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 10 days after receipt issue a certificate of compliance under Section 78B-3-418, 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.

(5)  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, and who has completed division training regarding conduct of panel hearings;

(b) 

(i)  one or more members who are licensed health care providers listed under Section 78B-3-403, who are practicing and knowledgeable in the same specialty as the proposed defendant, and who are appointed by the division in accordance with Subsection (6); or

(ii)  in claims against only a health care facility or the facility’s employees, one member who is an individual currently serving in a health care facility administration position directly related to health care facility 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.

(6) 

(a)  Each person listed as a health care provider in Section 78B-3-403 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 (6)(c) and (d) shall be deposited into the Physicians Education Fund created in Section 58-67a-1.

(f)  The director of the division may collect a fine that is not paid by:

(i)  referring the matter to a collection agency; or

(ii)  bringing an action in the district court of the county where the person against whom the penalty is imposed resides or in the county where the office of the director is located.

(g)  A county attorney or the attorney general of the state shall provide legal assistance and advice to the director in an action to collect a fine.

(h)  A court shall award reasonable attorney fees and costs to the prevailing party in an action brought by the division to collect a fine.

(7)  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.

(8)  A member of the prelitigation hearing panel may not receive compensation or benefits for the member’s service, but may receive per diem and travel expenses in accordance with:

(a)  Section 63A-3-106;

(b)  Section 63A-3-107; and

(c)  rules made by the Division of Finance pursuant to Sections 63A-3-106 and 63A-3-107.

(9) 

(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 78B-3-420.

Amended by Chapter 139, 2023 General Session

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