Utah Supreme Court Strikes Down Portion of State’s Medical Malpractice Pre-Litigation Review Panel Process
The Utah Supreme Court last month declared a portion of the state’s pre-litigation medical malpractice review panel process under the Utah Health Care Malpractice Act unconstitutional because it violates the separation of powers doctrine.
The Utah Legislature passed the Health Care Malpractice Act in 1976 to curb the perceived cost increases in malpractice insurance in Utah. The legislature added a pre-litigation medical review panel to the Act’s requirements in 1985.
Prelitigation review panels in alleged medical liability cases against healthcare providers were required under Title 78B, Chapter 3, Part 4, of the Utah Code Annotated. The administrative rules applicable to prelitigation review panels are found in Section R156-78B of the Utah Administrative Code.
The prelitigation panel review process is overseen by the Utah Division of Occupational & Professional Licensing (DOPL) and required the plaintiff initiating a medical professional liability action to file a request for panel review within 60 days after filing a notice of intent to commence action. This request is mailed to all healthcare providers named in the notice and request. Filing a request for a pre-litigation panel review also starts tolling the statute of limitations. A three-member panel comprised of an attorney who serves as chairperson, a lay member who is not a healthcare provider, hospital employee or attorney and a licensed healthcare provider practicing in the specialty in which the respondent healthcare provider practices are tasked with reviewing the merits of the case.
A meritorious finding by the panel results in a certificate of compliance with the prelitigation requirements, and the claim may be filed with the courts. If a claim was determined to be non-meritorious, prior to 2010, the claimant was required to first obtain an expert affidavit in support of the claim before filing a lawsuit.
In 2010, the Utah Legislature amended the prelitigation panel review process so that the DOPL could reject the plaintiff’s expert affidavit and block the lawsuit from moving forward. This is where the Utah Supreme Court found constitutional flaw.
The Court’s Ruling
In the case of Vega v. Jordan Valley Medical Center, Yolanda Vega attempted to file a medical professional liability lawsuit against Jordan Valley Medical Center on behalf of her deceased husband. The DOPL determined her claim lacked merit. She then acquired an expert affidavit in support of the claim, which the Division determined was inadequate. Vega filed her lawsuit anyway, and it was dismissed for lack of approval by the DOPL. Vega appealed the dismissal, arguing the Utah Health Care Act’s prelitigation requirements violated the separation of powers doctrine of the Utah Constitution. The Utah Supreme Court agreed with Vega’s argument.
“We conclude that Utah Code section 78B3-412(1)(b), which requires a certificate of compliance from DOPL in order for a plaintiff, like Ms. Vega, to initiate a malpractice action against a healthcare provider, is unconstitutional,” the Justices wrote in their opinion. “Accordingly, those sections of the Malpractice Act that require a plaintiff to obtain a certificate of compliance prior to filing a lawsuit in the district court must be stricken from the Act. Additionally, we declare the language in Utah Code section 78B-3-423(7), which mandates a dismissal of any malpractice action filed without a certificate of compliance, to be unconstitutional. Because section 423 cannot standalone or serve a purpose without section 423(7), we find the entirety of section 423 and all language throughout the act that refers to affidavits of merit to be unconstitutional.”
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.
“While 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 — regardless of whether the party attempting to exercise a core judicial function belongs to another that the “explicit vesting of jurisdiction in the various courts of the state is an implicit prohibition against any attempt to vest such jurisdiction elsewhere,” the Justices wrote. “Additionally, the ‘[c]ore functions or powers of the various branches of government are clearly nondelegable under the Utah Constitution.’ Notably, the core judicial function of courts includes ‘the power to hear and determine controversies between adverse parties and questions in litigation.’”
Ultimately, the Utah Supreme Court determined that “allowing DOPL to exercise the core judicial function of ordering the final disposition of claims, like those brought by Ms. Vega, without judicial review” interferes with that which is the sole purview of the courts. Thusly, the high 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.