Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 223 First Substitute (2018GS)

Sponsor

Sen. Hemmert, D.

Final action

Governor Signed 3/22/2018

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• requires a health care provider that signs an affidavit of merit to provide certain information to the Division of Occupational and Professional Licensing;
• requires the Division of Occupational and Professional Licensing to request and compile certain information related to a request for a medical liability pre-litigation panel review;
• amends the elements of a nonplaintiff cause of action; and
• makes technical changes.

Every vote on this bill

Bill text

UTAH HEALTH CARE MALPRACTICE ACT AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Daniel Hemmert
House Sponsor: 
Michael S. Kennedy
LONG TITLE
General Description:
This bill amends provisions of the Utah Health Care Malpractice Act.
Highlighted Provisions:
This bill:
▸ requires a health care provider that signs an affidavit of merit to provide certain
information to the Division of Occupational and Professional Licensing;
▸ requires the Division of Occupational and Professional Licensing to request and
compile certain information related to a request for a medical liability pre-litigation
panel review;
▸ amends the elements of a nonplaintiff cause of action; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
78B-3-423
, as enacted by Laws of Utah 2010, Chapter 97
78B-3-426
, as enacted by Laws of Utah 2016, Chapter 257
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
78B-3-423
 is amended to read:
78B-3-423.
Affidavit of merit.
(1) (a) [
Before
] 
For a cause of action that arises on or after July 1, 2010, before
 a
claimant may receive a certificate of compliance under Sections 
78B-3-416
 and 
78B-3-418
, a
claimant shall file an affidavit of merit under this section[
:
]
.
(b) The claimant shall file an affidavit of merit:
(i) within 60 days [
of the date of the panel's
] 
after the day on which the pre-litigation
panel issues an
 opinion, if the claimant receives a finding from the pre-litigation panel in
accordance with Section 
78B-3-418
 of non-meritorious for either:
(A) the claim of breach of applicable standard of care; or
(B) that the breach of care was the proximate cause of injury;
(ii) within 60 days [
of the expiration of
] 
after the day on which
 the time limit in
Subsection 
78B-3-416
(3)(b)(ii) 
expires
, if a pre-litigation hearing is not held within the time
limits under Subsection 
78B-3-416
(3)(b)(ii); or
(iii) within 30 days [
of the division's
] 
after the day on which the division makes a
determination under Subsection 
78B-3-416
(3)(d)(ii)(B), if the division makes a determination
under Subsection 
78B-3-416
(3)(d)(ii)(B).
[
(b)
] 
(c)
 A claimant who is required to file an affidavit of merit under Subsection (1)(a)
shall:
(i) file the affidavit of merit with the division; and
(ii) serve each defendant with the affidavit of merit in accordance with Subsection
78B-3-412
(3).
(2) The affidavit of merit shall:
(a) be executed by the claimant's attorney or the claimant if the claimant is proceeding
pro se, stating that the affiant has consulted with and reviewed the facts of the case with a
health care provider who has determined after a review of the medical record and other relevant
material involved in the particular action that there is a reasonable and meritorious cause for
the filing of a medical liability action; and
(b) include an affidavit signed by a health care provider who meets the requirements of
Subsection [
(3), which states that in the health care provider's opinion
] 
(4)
:
(i) 
stating that in the health care provider's opinion,
 there are reasonable grounds to
believe that the applicable standard of care was breached;
(ii) 
stating that in the health care provider's opinion,
 the breach was a proximate cause
of the injury claimed in the notice of intent to commence action; and
(iii) 
stating
 the reasons for the health care provider's opinion.
[
(c)
] 
(3)
 The statement required in Subsection (2)(b)(i) shall be waived if the claimant
received an opinion that there was a breach of the applicable standard of care under Subsection
78B-3-418
(2)(a)(i).
[
(3)
] 
(4)
 A health care provider who signs [
the
] 
an
 affidavit [
of merit
] under Subsection
(2)
(b)
 shall:
(a) if none of the respondents is a physician [
licensed under Title 58, Chapter 67, Utah
Medical Practice Act,
] or an osteopathic physician [
licensed under Title 58, Chapter 68, Utah
Osteopathic Medical Practice Act
], hold a current unrestricted license issued by the appropriate
licensing authority of Utah or another state in the same specialty or of the same class of license
as the respondents; or
(b) if at least one of the respondents is a physician [
licensed under Title 58, Chapter 67,
Utah Medical Practice Act,
] or an osteopathic physician [
licensed under Title 58, Chapter 68,
Utah Osteopathic Medical Practice Act
], hold a current unrestricted license issued by the
appropriate licensing authority of Utah or another state to practice medicine in all its branches.
[
(4)
] 
(5)
 A claimant's attorney or claimant may obtain up to a 60-day extension to file
the affidavit of merit if:
(a) the claimant or the claimant's attorney submits a signed affidavit for extension with
notice to the division attesting to the fact that the claimant is unable to submit an affidavit of
merit as required by this section because:
(i) a statute of limitations would impair the action; and
(ii) the affidavit of merit could not be obtained before the expiration of the statute of
limitations; and
(b) the claimant or claimant's attorney submits the affidavit for extension to each
named respondent in accordance with Subsection 
78B-3-412
(3) no later than 60 days after the
date specified in Subsection [
(1)(a)(i)
] 
(1)(b)(i)
.
[
(5)
] 
(6)
 (a) A claimant or claimant's attorney who submits allegations in an affidavit of
merit that are found to be without reasonable cause and untrue, based on information available
to the plaintiff at the time the affidavit was submitted to the division, is liable to the defendant
for the payment of reasonable expenses and reasonable attorney fees actually incurred by the
defendant or the defendant's insurer.
(b) An affidavit of merit is not admissible, and cannot be used for any purpose, in a
subsequent lawsuit based on the claim that is the subject of the affidavit, except for the purpose
of establishing the right to recovery under Subsection [
(5)
] 
(6)
(c).
(c) A court, or arbitrator under Section 
78B-3-421
, may award costs and attorney fees
under Subsection [
(5)
] 
(6)
(a) if the defendant files a motion for costs and attorney fees within
60 days of the judgment or dismissal of the action in favor of the defendant. The person
making a motion for attorney fees and costs may depose and examine the health care provider
who prepared the affidavit of merit 
under Subsection (2)(b)
.
[
(6)
] 
(7)
 If a claimant or the claimant's attorney does not file an affidavit of merit as
required by this section, the division may not issue a certificate of compliance for the claimant
and the malpractice action shall be dismissed by the court.
[
(7)
] 
(8)
 [
This section applies to a cause of action that arises on or after July 1, 2010.
]
For each request for prelitigation panel review under Subsection 
78B-3-416
(2)(b), the division
shall compile the following information:
(a) whether the cause of action arose on or after July 1, 2010;
(b) the number of respondents named in the request; and
(c) for each respondent named in the request:
(i) the respondent's license class;
(ii) if the respondent has a professional specialty, the respondent's professional
specialty;
(iii) if the division does not issue a certificate of compliance at the conclusion of the
prelitigation process, the reason a certificate was not issued;
(iv) if the division issues a certificate of compliance, the reason the certificate of
compliance was issued;
(v) if an affidavit of merit was filed by the claimant, for each health care provider who
submitted an affidavit under Subsection (2)(b):
(A) the health care provider's license class and professional specialty; and
(B) whether the health care provider meets the requirements of Subsection
78B-3-416
(4)(b); and
(vi) whether the claimant filed an action in court against the respondent.
(9) The division may require the following persons to submit the information to the
division necessary for the division to comply with Subsection (8):
(a) a claimant;
(b) a respondent;
(c) a health care provider who submits an affidavit under Subsection (2)(b); and
(d) a medical liability pre-litigation panel.
Section 2. Section 
78B-3-426
 is amended to read:
78B-3-426.
Nonpatient plaintiffs.
(1) For purposes of this section, a nonpatient plaintiff does not include a patient, as
defined in Subsection 
78B-3-403
(23).
(2) This section does not apply to a [
healthcare
] 
health care
 malpractice action brought
or seeking recovery under Section 
30-2-11
, 
78B-3-106
, 
78B-3-107
, or 
78B-3-502
.
(3) To establish a malpractice action against a health care provider, a nonpatient
plaintiff shall be required to show that:
(a) the health care provider owes a duty to the nonpatient plaintiff;
[
(a)
] 
(b)
 the nonpatient plaintiff suffered [
an
] 
a foreseeable
 injury;
[
(b)
] 
(c)
 the nonpatient plaintiff's injury was proximately caused by an act or omission
of the health care provider; and
[
(c)
] 
(d)
 the health care provider's act or omission was conduct that manifests a
knowing and reckless indifference toward, and a disregard of, the injury suffered by the
nonpatient plaintiff.