Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 318 (2022GS)

Sponsor

Rep. Teuscher, J.

Final action

Governor Signed 3/24/2022

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• exempts dental care providers from the requirement for a prelitigation hearing panel in a health care malpractice action.

Every vote on this bill

Bill text

DENTAL PROVIDER MALPRACTICE AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Jordan D. Teuscher
Senate Sponsor: 
Michael S. Kennedy
LONG TITLE
General Description:
This bill amends the Utah Health Care Malpractice Act.
Highlighted Provisions:
This bill:
▸ exempts dental care providers from the requirement for a prelitigation hearing panel
in a health care malpractice action.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
78B-3-403
, as last amended by Laws of Utah 2019, Chapter 349
78B-3-412
, as last amended by Laws of Utah 2010, Chapter 97
78B-3-416
, as last amended by Laws of Utah 2020, Chapter 339
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
78B-3-403
 is amended to read:
78B-3-403.
Definitions.
As used in this part:
(1) "Audiologist" means a person licensed to practice audiology under Title 58,
Chapter 41, Speech-Language Pathology and Audiology Licensing Act.
(2) "Certified social worker" means a person licensed to practice as a certified social
worker under Section 
58-60-205
.
(3) "Chiropractic physician" means a person licensed to practice chiropractic under
Title 58, Chapter 73, Chiropractic Physician Practice Act.
(4) "Clinical social worker" means a person licensed to practice as a clinical social
worker under Section 
58-60-205
.
(5) "Commissioner" means the commissioner of insurance as provided in Section
31A-2-102
.
(6) "Dental hygienist" means a person licensed to engage in the practice of dental
hygiene as defined in Section 
58-69-102
.
(7) "Dental care provider" means any person, partnership, association, corporation, or
other facility or institution who causes to be rendered or who renders dental care or
professional services as a dentist, dental hygienist, or other person rendering similar care and
services relating to or arising out of the practice of dentistry or the practice of dental hygiene,
and the officers, employees, or agents of any of the above acting in the course and scope of
their employment.
[
(7)
] 
(8)
 "Dentist" means a person licensed to engage in the practice of dentistry as
defined in Section 
58-69-102
.
[
(8)
] 
(9)
 "Division" means the Division of Occupational and Professional Licensing
created in Section 
58-1-103
.
[
(9)
] 
(10)
 "Future damages" includes a judgment creditor's damages for future medical
treatment, care or custody, loss of future earnings, loss of bodily function, or future pain and
suffering.
[
(10)
] 
(11)
 "Health care" means any act or treatment performed or furnished, or which
should have been performed or furnished, by any health care provider for, to, or on behalf of a
patient during the patient's medical care, treatment, or confinement.
[
(11)
] 
(12)
 "Health care facility" means general acute hospitals, specialty hospitals,
home health agencies, hospices, nursing care facilities, assisted living facilities, birthing
centers, ambulatory surgical facilities, small health care facilities, health care facilities owned
or operated by health maintenance organizations, and end stage renal disease facilities.
[
(12)
] 
(13)
 "Health care provider" includes any person, partnership, association,
corporation, or other facility or institution who causes to be rendered or who renders health
care or professional services as a hospital, health care facility, physician, physician assistant,
registered nurse, licensed practical nurse, nurse-midwife, licensed direct-entry midwife, dentist,
dental hygienist, optometrist, clinical laboratory technologist, pharmacist, physical therapist,
physical therapist assistant, podiatric physician, psychologist, chiropractic physician,
naturopathic physician, osteopathic physician, osteopathic physician and surgeon, audiologist,
speech-language pathologist, clinical social worker, certified social worker, social service
worker, marriage and family counselor, practitioner of obstetrics, licensed athletic trainer, or
others rendering similar care and services relating to or arising out of the health needs of
persons or groups of persons and officers, employees, or agents of any of the above acting in
the course and scope of their employment.
[
(13)
] 
(14)
 "Hospital" means a public or private institution licensed under Title 26,
Chapter 21, Health Care Facility Licensing and Inspection Act.
[
(14)
] 
(15)
 "Licensed athletic trainer" means a person licensed under Title 58, Chapter
40a, Athletic Trainer Licensing Act.
[
(15)
] 
(16)
 "Licensed direct-entry midwife" means a person licensed under the
Direct-entry Midwife Act to engage in the practice of direct-entry midwifery as defined in
Section 
58-77-102
.
[
(16)
] 
(17)
 "Licensed practical nurse" means a person licensed to practice as a licensed
practical nurse as provided in Section 
58-31b-301
.
[
(17)
] 
(18)
 "Malpractice action against a health care provider" means any action against
a health care provider, whether in contract, tort, breach of warranty, wrongful death, or
otherwise, based upon alleged personal injuries relating to or arising out of health care rendered
or which should have been rendered by the health care provider.
[
(18)
] 
(19)
 "Marriage and family therapist" means a person licensed to practice as a
marriage therapist or family therapist under Sections 
58-60-305
 and 
58-60-405
.
[
(19)
] 
(20)
 "Naturopathic physician" means a person licensed to engage in the practice
of naturopathic medicine as defined in Section 
58-71-102
.
[
(20)
] 
(21)
 "Nurse-midwife" means a person licensed to engage in practice as a nurse
midwife under Section 
58-44a-301
.
[
(21)
] 
(22)
 "Optometrist" means a person licensed to practice optometry under Title 58,
Chapter 16a, Utah Optometry Practice Act.
[
(22)
] 
(23)
 "Osteopathic physician" means a person licensed to practice osteopathy
under Title 58, Chapter 68, Utah Osteopathic Medical Practice Act.
[
(23)
] 
(24)
 "Patient" means a person who is under the care of a health care provider,
under a contract, express or implied.
[
(24)
] 
(25)
 "Periodic payments" means the payment of money or delivery of other
property to a judgment creditor at intervals ordered by the court.
[
(25)
] 
(26)
 "Pharmacist" means a person licensed to practice pharmacy as provided in
Section 
58-17b-301
.
[
(26)
] 
(27)
 "Physical therapist" means a person licensed to practice physical therapy
under Title 58, Chapter 24b, Physical Therapy Practice Act.
[
(27)
] 
(28)
 "Physical therapist assistant" means a person licensed to practice physical
therapy, within the scope of a physical therapist assistant license, under Title 58, Chapter 24b,
Physical Therapy Practice Act.
[
(28)
] 
(29)
 "Physician" means a person licensed to practice medicine and surgery under
Title 58, Chapter 67, Utah Medical Practice Act.
[
(29)
] 
(30)
 "Physician assistant" means a person licensed to practice as a physician
assistant under Title 58, Chapter 70a, Utah Physician Assistant Act.
[
(30)
] 
(31)
 "Podiatric physician" means a person licensed to practice podiatry under
Title 58, Chapter 5a, Podiatric Physician Licensing Act.
[
(31)
] 
(32)
 "Practitioner of obstetrics" means a person licensed to practice as a
physician in this state under Title 58, Chapter 67, Utah Medical Practice Act, or under Title 58,
Chapter 68, Utah Osteopathic Medical Practice Act.
[
(32)
] 
(33)
 "Psychologist" means a person licensed under Title 58, Chapter 61,
Psychologist Licensing Act, to engage in the practice of psychology as defined in Section
58-61-102
.
[
(33)
] 
(34)
 "Registered nurse" means a person licensed to practice professional nursing
as provided in Section 
58-31b-301
.
[
(34)
] 
(35)
 "Relative" means a patient's spouse, parent, grandparent, stepfather,
stepmother, child, grandchild, brother, sister, half brother, half sister, or spouse's parents. The
term includes relationships that are created as a result of adoption.
[
(35)
] 
(36)
 "Representative" means the spouse, parent, guardian, trustee,
attorney-in-fact, person designated to make decisions on behalf of a patient under a medical
power of attorney, or other legal agent of the patient.
[
(36)
] 
(37)
 "Social service worker" means a person licensed to practice as a social
service worker under Section 
58-60-205
.
[
(37)
] 
(38)
 "Speech-language pathologist" means a person licensed to practice
speech-language pathology under Title 58, Chapter 41, Speech-Language Pathology and
Audiology Licensing Act.
[
(38)
] 
(39)
 "Tort" means any legal wrong, breach of duty, or negligent or unlawful act
or omission proximately causing injury or damage to another.
[
(39)
] 
(40)
 "Unanticipated outcome" means the outcome of a medical treatment or
procedure that differs from an expected result.
Section 2. Section 
78B-3-412
 is amended to read:
78B-3-412.
Notice of intent to commence action.
(1) A malpractice action against a health care provider may not be initiated unless and
until the plaintiff:
(a) gives the prospective defendant or his executor or successor, at least 90 days' prior
notice of intent to commence an action; and
(b) except for an action against a dentist 
or a dental care provider
, the plaintiff receives
a certificate of compliance from the division in accordance with Section 
78B-3-418
.
(2) The notice shall include:
(a) a general statement of the nature of the claim;
(b) the persons involved;
(c) the date, time, and place of the occurrence;
(d) the circumstances surrounding the claim;
(e) specific allegations of misconduct on the part of the prospective defendant; and
(f) the nature of the alleged injuries and other damages sustained.
(3) 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 considered served on the
date of mailing.
(4) 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 90 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.
(5) 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.
Section 3. Section 
78B-3-416
 is amended to read:
78B-3-416.
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 
78B-3-403
, except dentists 
or dental care
providers
.
(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 
78B-3-416
 through 
78B-3-420
.
(c) The proceedings are informal, nonbinding, and are not subject to Title 63G, Chapter
4, 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.
(e) The division may not provide more than one hearing panel for each alleged medical
liability case against a health care provider.
(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 
78B-3-412
.
(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 later of:
(i) 60 days following the division's issuance of:
(A) an opinion by the prelitigation panel; or
(B) a certificate of compliance under Section 
78B-3-418
; or
(ii) the expiration of the time for holding a hearing under Subsection (3)(b)(ii).
(b) The division shall:
(i) send any opinion issued by the panel to all parties by regular mail; and
(ii) complete a prelitigation hearing under this section within:
(A) 180 days after the filing of the request for prelitigation panel review; or
(B) any longer period as agreed upon in writing by all parties to the review.
(c) If the prelitigation hearing has not been completed within the time limits
established in Subsection (3)(b)(ii), the claimant shall:
(i) file an affidavit of merit under the provisions of Section 
78B-3-423
; or
(ii) file an affidavit with the division within 180 days of the request for pre-litigation
review, in accordance with Subsection (3)(d), alleging that the respondent has failed to
reasonably cooperate in scheduling the hearing.
(d) If the claimant files an affidavit under Subsection (3)(c)(ii):
(i) within 15 days of the filing of the affidavit under Subsection (3)(c)(ii), the division
shall determine whether either the respondent or the claimant failed to reasonably cooperate in
the scheduling of a pre-litigation hearing; and
(ii) (A) if the determination is that the respondent failed to reasonably cooperate in the
scheduling of a hearing, and the claimant did not fail to reasonably cooperate, the division
shall, issue a certificate of compliance for the claimant in accordance with Section 
78B-3-418
;
or
(B) if the division makes a determination other than the determination in Subsection
(3)(d)(ii)(A), the claimant shall file an affidavit of merit in accordance with Section 
78B-3-423
,
within 30 days of the determination of the division under this Subsection (3).
(e) (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 10 days
after receipt issue a certificate of compliance under Section 
78B-3-418
, 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, and who has completed division training
regarding conduct of panel hearings;
(b) (i) one or more members who are licensed health care providers listed under
Section 
78B-3-403
, who are practicing and knowledgeable in the same specialty as the
proposed defendant, and who are appointed by the division in accordance with Subsection (5);
or
(ii) in claims against only a health care facility or the facility's employees, one member
who is an individual currently serving in a health care facility administration position directly
related to health care facility 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 
78B-3-403
 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
.
(f) The director of the division may collect a fine that is not paid by:
(i) referring the matter to a collection agency; or
(ii) bringing an action in the district court of the county where the person against whom
the penalty is imposed resides or in the county where the office of the director is located.
(g) A county attorney or the attorney general of the state shall provide legal assistance
and advice to the director in an action to collect a fine.
(h) A court shall award reasonable attorney fees and costs to the prevailing party in an
action brought by the division to collect a fine.
(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) A member of the prelitigation hearing panel may not receive compensation or
benefits for the member's service, but may receive per diem and travel expenses in accordance
with:
(a) Section 
63A-3-106
;
(b) Section 
63A-3-107
; and
(c) rules made by the Division of Finance pursuant to Sections 
63A-3-106
 and
63A-3-107
.
(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 
78B-3-420
.