Utah‚Äôs initial reforms in 1976 helped to establish a framework to define and govern the handling of medical malpractice acts, including establishing standard of care and requirements for expert testimony. Important amendments to the act included the 1986-establishment of a $250,000 noneconomic damages cap, abolishment of joint and several liability and requirement for a pre-litigation panel hearing to screen all claims and determine merit. A 1999 amendment created an arbitration system for the state, and, from 1999 to 2003, arbitration agreements between physician and patient were becoming increasingly common within the Utah healthcare community. In 2003, the physician lobby pushed for legislation that would allow physicians to terminate their relationship with patients who would not sign away their right to a jury trial. After considerable public backlash against the proposed law, and a state supreme court case in which the court refused to enforce an arbitration agreement, the idea of mandating arbitration prior to the performance of a healthcare service was abandoned.
In 2001, the state‚Äôs noneconomic damage cap was increased to $400,000. The cap withstood a constitutional challenge in 2004, with the Utah Supreme Court finding that the damages cap did not violate the state‚Äôs separation of powers doctrine, writing ‚ÄúThe legislature imposed this cap because it was convinced that doing so would limit malpractice insurance costs for medical professionals, thereby helping to control excessively high medical care costs and health insurance premiums paid by most citizens and assuring a continued supply of medical care to all. This was a policy choice made by the legislature, as is its duty‚Ä¶ The damage cap represents law to be applied, not an improper usurpation of jury prerogatives. Consequently, it does not violate the separation of powers provision of the constitution.‚ÄĚ
Further amendments were made to the act in 2010, when a ‚Äėhard cap‚Äô of noneconomic damages was set at $450,000 (no adjustments for inflation) and a requirement for an affidavit of merit in medical malpractice cases was instituted. Under the new amendments, in a malpractice action against a healthcare provider, the injured plaintiff may recover noneconomic losses to compensate for pain and suffering, but the total loss cannot exceed $450,000. This new hard cap removed any adjustment of the cap due to inflation. The previous cap‚ÄĒwhich included provisions for inflation adjustment‚ÄĒhad grown since its 2001 inception from $400,000 to $480,000. Tort reform advocates argued that the hard cap would provide greater predictability, which would allow medical professional liability insurers to keep policy premiums in check.
The affidavit of merit portion of the 2010 amendments updated the pre-litigation panel process instituted in 1985. The most significant change is a requirement that a plaintiff obtain an ‚Äúaffidavit of merit‚ÄĚ prior to a lawsuit being filed. This requirement applies if the pre-litigation hearing panel finds that the claim lacks merit, either for lack of breach of the standard of care or for lack of resulting damage. The affidavit of merit must consists of two affidavits: (1) the attorney must execute an affidavit stating that the attorney or claimant has consulted with and reviewed the facts of the case with a healthcare provider who has determined after review of the medical records and other relevant information ‚Äúthat there is a reasonable and meritorious cause for the filing of a medical liability action‚ÄĚ; (2) the affidavit of merit must also include an affidavit signed by a healthcare provider appropriately licensed in the same specialty as the defendant. Essentially, the affidavit of merit functions as a second opinion to the pre-litigation panel‚Äôs conclusions. If the panel finds merit, the affidavit of merit is not required; however, if the panel finds the claim non-meritorious, then the claimant must produce sworn expert opinion testimony supporting the claim before filing suit.
In 2019, the Utah Supreme Court declared a portion of the state‚Äôs pre-litigation medical malpractice review panel process under the Utah Health Care Malpractice Act unconstitutional because it violates the separation of powers doctrine. The reasoning behind the decision rests on two distinct constitutional provisions: the separation of powers ensconced in Article V of the Utah Constitution and the judicial power vested in Article VII. Under both articles, the DOPL was determined to be infringing on the purview of the judiciary.
‚ÄúWhile Article V regulates and guides the apportionment of authority and function between the branches of government, the core judicial power vested in the courts by Article VIII is always retained by the judiciary ‚ÄĒ regardless of whether the party attempting to exercise a core judicial function belongs to another that the ‚Äúexplicit vesting of jurisdiction in the various courts of the state is an implicit prohibition against any attempt to vest such jurisdiction elsewhere,‚ÄĚ the Justices wrote. ‚ÄúAdditionally, the ‚Äė[c]ore functions or powers of the various branches of government are clearly nondelegable under the Utah Constitution.‚Äô¬† Notably, the core judicial function of courts includes ‚Äėthe power to hear and determine controversies between adverse parties and questions in litigation.‚Äô‚ÄĚ
Ultimately, the Utah Supreme Court struck down the 2010 portion of the law that outlined the process of a healthcare provider offering an affidavit that is then sent to DOPL. The original DOPL pre-litigation hearing process remains intact.