UTAH MEDICAL MALPRACTICE
Please select from below for applicable Utah statutes and explanations:
* This page is not intended to describe all facets of medical malpractice law in the Utah. It simply seeks to answer common questions of potential litigants with personal injury/ medical malpractice cases. This page does not establish an attorney/client relationship, nor does it dispense legal advice.
Please contact Edward Stone for more information.
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A physician impliedly contracts with those who employ him/her that he/she possesses a reasonable degree of care, skill and learning, and he/she is therefore bound to exercise, and is liable, for the wont of reasonable care, skill and diligence. Grounds for a medical malpractice claim may arise as much from a doctor's neglect in the application of their profession as from the lack of skill in the first place.
First and foremost, it should be noted that not every contact with a physician will necessarily result in the type of physician/patient relationship that gives rise to a duty of care. Recovery for a medical malpractice suit is generally allowed only when there has been an express contract for medical services, or implied, as when an unconscious patient comes under the care of physicians in a hospital emergency room.
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A doctor owes his/her patient a reasonable degree of care and skill. "Reasonable degree" is measured by fellow member of the profession. Thus, if a doctor has acted in accordance with what is accepted and practiced by other doctors within that field, the doctor has satisfied their duty towards the patient. A doctor is not held to the highest standards of the profession, and therefore cannot be liable for not providing optimal care, so long as the care provided is of a level commonly considered to be acceptable by other members of the profession.
The nature of medicine is such that there will often be several acceptable methods available for treating a given medical problem. Should a doctor utilize one of the acceptable methods, and a bad result occur, the law does not allow a jury to speculate that one of the other methods might have resulted in a better outcome. Closely related is the Error in Judgment Rule, which states that a doctor who makes a error in judgment cannot, on that basis alone, be held liable for malpractice, so long as he/she has otherwise met applicable professional standards.
Similarly, hospitals are judged by that degree of care and skill which is to be expected by a reasonably competent facility, taking into account the availability of special medical equipment and specialists.
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Money Damages- Limitations
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| 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.
Notes:
(2) Economic damages- defined as loss of earnings and medical expenses. Medical expenses include: (1) hospital bills; (2) physician bills; (3) medical equipment; (4) medications; (5) special care; (6) physical therapy; (7) psychological therapy; (8) changes in living environment (i.e. loss of sight, paralysis); (9) transportation to and from medical facilities. Economic damages also include loss of earnings in the past as well as any reasonably probable loss of future earnings due to injury. Lost earnings include wages, commissions, benefits and pensions. To determine the award for impairment of earning capacity, the judge or jury must: (1) determine the extent of the impairment; and (2) assess the consequences or losses, which result from the impairment. To calculate the amount of future earning capacity loss, the judge or jury can consider: (1) the plaintiff's earning capacity before the injury; (2) probable duration of the impairment; (3) the extent to which the injury disabled the plaintiff from engaging in occupations for which he would have been qualified but for the accident.
(3) Punitive damages- the purpose is to punish outrageous conduct and to discourage similar conduct in the future. In order to recover punitive damages, a plaintiff must demonstrate "actual malice" by the defendant. This means that the injured party must show, by clear and convincing evidence, that the defendant's conduct was motivated by evil motive, intent to injure, ill will, or fraud. There is theoretically no limit to a punitive damage award, but the judge has the power to reduce excessive punitive damages.
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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.
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One of the most effective defenses in a medical malpractice case is the modified statute of limitations applicable is medical malpractice cases. In standard personal injury cases, the statute begins running the day the injured party either discovered or should have discovered the injury. In medical malpractice cases, the statute runs forward three years from this date, but only looks back five years. For example, if someone discovers five years and a day later that a doctor left a sponge in their abdomen which caused extensive internal injuries, that patient would be barred from recovery. There are a number of situations which extend the statute of limitations, however, their application is limited and narrowly construed.
Just as a doctor is bound to a duty of care to the patient, the patient is bound to act as a reasonably prudent person would in the protection of their own health. A plaintiff is not guilty of contributory negligence if he/she acts as an ordinary prudent person would act under the circumstances. In medical malpractice cases, the injured parties contributory negligence must act in concert with the actions of the medical provider in order to make the defense available.
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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.
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Hearing Panel Proceedings
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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.
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Decisions of Hearing Panels
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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.
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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.
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