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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.

Utah Decision Threatens to Raise Medical Malpractice Insurance Rates

The Supreme Court of Utah just opened a giant can of worms in regard to medical professional liability. And those worms could be a harbinger of rising medical malpractice insurance rates for the state’s physician and surgeon communities.

On Feb. 28, the Utah Supreme Court ruled that healthcare providers have a duty to consider how a patient’s course of treatment could affect that patient’s family. This opens the door for family members to sue their relative’s physician if they are adversely affected by the patient’s course of treatment.

The case that the Utah high court was considering was filed by the children of a woman who was murdered by her heavily medicated husband in a church parking lot. Following the woman’s death and the subsequent murder conviction of her husband, the woman’s children filed a wrongful death lawsuit against the husband’s healthcare providers, alleging that they were negligent because his medications contributed to his murderous actions. The children sued the doctor Hugo and his nurse practitioner for prescribing antidepressants and other medications that can carry risks of psychiatric complications.

A Third District Court Judge originally dismissed the case in February 2011, writing that the children could not pursue a medical malpractice lawsuit because they were not the patients. The Utah Supreme Court reversed that decision.

This is a big deal because medical malpractice insurance rates are determined by a few, very important factors: the state’s existing tort reform legislation, historic jury verdicts and claims frequency.

Traditionally, medical malpractice has been defined as an act of medical negligence that results in undue injury to a patient. Now, the Utah Supreme Court has widened that definition to include an act of medical negligence that results in undue injury to a patient OR his or her family members.

Plaintiff attorneys are not dumb. They are always looking for ways to increase the dollar amount of jury verdicts and settlements. If they can attach the injured patient’s family members to a medical malpractice lawsuit, they will. The plaintiff attorneys will do this with varied, creative arguments showing how the medical negligence caused undue injury to not just the patient but also his or her family members.

By widening the number of potential victims of an act of medical negligence, the Utah high court’s decision will undoubtedly increase the state’s claims frequency. And that claims frequency will ultimately necessitate that medical malpractice insurance companies increase the cost of medical malpractice insurance rates.

Utah Medical Malpractice bill seeks fair hearing

side note: Now that tort reform has become the oft-parroted republican talking point, we could be looking at an opportunity at the state level. So what if there is no federal tort reform? With the groundswell of conservative and independent voters seemingly convinced that medical malpractice lawsuit reform is the answer to skyrocketing healthcare costs, shouldn’t it be easier to accomplish tort reforms at a state level now?

After several detours, a controversial bill that would cap medical malpractice awards for pain and suffering at $250,000 has now landed in the Senate Natural Resources Committee for debate.

“I was just trying to determine the relevance of medical malpractice with animals,” Sen. Jon Greiner, R-Ogden, said of the committee-shuffling for SB145 that took place on the Senate floor this week. “I guess we’ll find out.”

The “med-mal” bill, sponsored by Sen. Stuart Adams, R-Layton, was first scheduled to go before the Senate Health and Human Services committee, chaired by Sen. Chris Buttars, R-West Jordan. It later was sent to Business and Labor. Then it shifted to Natural Resources.

Read the full article here

These trends have forced physicians to constantly look for more competitive medical malpractice insurance quotes. We here at MyMedicalMalpracticeInsurance.com are hear to help physicians of any specialty lower their rates.