Utah Medical Malpractice Laws

As a patient, you place enormous trust in your chosen health care provider. The betterment of your health hinges on their knowledge and expertise. If a medical professional fails to properly carry out their duties, it can cause you unparalleled pain, suffering, and distress – in addition to any inflicted injury. Medical negligence is not to be taken lightly, and if you or a loved one was injured at the hands of a negligent health care provider, you will want to see that the responsible party is held accountable. Filing a medical malpractice claim in Utah is a very complicated undertaking. It will require exceptional legal aid from an attorney well versed in Utah malpractice law.

Time is of the essence in these cases; your state imposes limits on how long you have to file a claim for medical malpractice. A good attorney can help explore the merits of your case, taking care of the legal minutia so you are free to focus on your recovery. Given the complexity and time sensitive nature of medical malpractice cases, you will want to speak to an experienced medical malpractice attorney as soon as possible.

Suing for medical malpractice in Utah

When Utah passed the Health Care Malpractice Act, it sought to alleviate many problems that had arisen surrounding medicine and litigation. The state noted that the possibility of being sued was causing doctors to practice “defensive medicine,” because a patient was viewed as a “potential adversary in a lawsuit.” The rise in malpractice claims forced insurance companies to hike up rates for liability insurance. Doctors passed those expenses along to their patients, and the result was absurdly high health care cost. [1] These trends pushed Utah lawmakers to create an air tight medical malpractice law that permits malpractice claims only in extremely specific circumstances, placing more burden on potential claimants to meticulously prove their claim’s merit. 

In turn, there is a slew of things a patient must prove in order to move forward with a malpractice claim. There are seemingly endless legal documents to supply and evaluate as well – waivers, releases, medical records, affidavits, and notices. The process can be confusing, stressful and taxing – especially while one is already tasked with recovering from an injury. Therefore, this cumbersome duty is best left up to a knowledgeable lawyer entirely devoted to your cause, who can field your input when necessary and ensure your case is given the fair treatment it deserves in the courtroom.

A medical malpractice suit may be brought forth for “any legal wrong, breach of duty, or negligent or unlawful act or omission proximately causing injury or damage to another.” [2] Utah supplies a relatively open-ended definition here, so the base criteria for a claim is actually quite broad. However, “breach of duty” must be meticulously proven, backed up by expert opinion, and idiosyncratically match the legal definition. So-called “omission” only becomes a liability in an extremely narrow set of circumstances.

Lawmakers tried to foresee every circumstance in which a “breach” or “omission” might occur, why they might be acceptable in certain circumstances and consequently safeguarded them from the possibility of a lawsuit as they saw fit.

How long do I have to file a medical malpractice case in Utah?

Before bringing a medical malpractice claim forward in the state of Utah, you will have to make certain that you haven’t exceeded the time limit to do so. The statute of limitations governs the time frame in which a case may be brought forward. Once an injury has been discovered (or “should have been discovered”), the malpractice claim must be commenced within two years of that discovery. However, this may not exceed four years from when the malpractice took place. For example, if you have an injury that wasn’t immediately discoverable, and you discover it three years after the actionable negligence took place – do not take the full two years afforded to file, otherwise, your case will fall outside of the statute of limitations of four years and will be barred.

In cases where a foreign object was left in a patient’s body, or the health care provider fraudulently tried to conceal the negligence that led to injury, the claim will be barred unless brought forward within a year of discovery of the foreign object or the fraudulent behavior. Remember, the “countdown” to file does not begin until the injury/negligence is discovered by the claimant. However, an overall countdown of four years also applies, beginning when the actual act of negligence occurs, regardless of discovery. [3]

In Utah medical malpractice cases, who is responsible?

In Utah, you may file a medical malpractice lawsuit against any offending health care facility or health care provider. A facility is defined as any of the following: 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. A provider is defined as any of the following: 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, 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 – if health care was provided for the patient, health care having the meaning of: 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. [4]

Utah does seem to have a wide-breadth definition of health care, seeing as suits may be brought against a manner of social workers, family and marriage counselors, as well as athletic trainers.

Rendered health care is not the only grounds for a lawsuit, however – as mentioned, the omission of pertinent information is considered equally harmful especially if the patient incurred an injury from the care they received and were not aware of the risks involved in said care. Many stipulations apply that need is kept in mind. For a situation to be characterized as “lacking informed consent,” the burden of proof rests with the plaintiff, who must show that a patient-provider relationship existed prior to the care in question, the risk of harm was substantial and significant, the patient was not informed nor would they or a “reasonable person” authorize health care that carried that risk, and that the injury was a direct result of the harm for which there undisclosed risk. [5]

In other, less “legal jargony” terms, the provider had to have been aware of or have access to your medical history because of an existing relationship. They had to fail to disclose the serious harm involved. A reasonable, sane person would have good reason to refuse this care because of that risk. And whatever injury was suffered, it was a direct result of the harm that hadn’t been disclosed.

Let’s say a heart surgery is performed on a patient. The possibility of a chest wound infection was substantial, well-known to heart surgeons, and the patient was made aware of that risk in writing. A chest wound infection does develop. The patient also finds that a different, serious risk was not disclosed as a result of negligent omission. This was the risk of cardiac tamponade, a potentially life-threatening condition which they did not suffer but nevertheless were not informed of. Because the injury they did suffer was not a proximate result of cardiac tamponade (the harm that wasn’t disclosed), they could not bring a suit for lack of informed consent. Only if the patient had been injured from cardiac tamponade, the undisclosed risk, could a suit for lack of informed consent be carried out.

What if I am partially to blame? Can I still recover money for UT medical malpractice?

In some states, if the patient was partially responsible for their injuries the amount of damages they may collect from a medical malpractice lawsuit may be reduced. Utah has adopted a form of modified comparative negligence with a 50% bar rule. [6] Let’s take a look at what that means for you and your potential malpractice claim.

States that subscribe to the doctrine of modified comparative negligence allow the court to assign a percentage of blame to each party involved. If you contributed to your injuries to a point of at least 50%, in other words, the court finds you are exactly half responsible for what happened, then you are barred from recovering money for the claim. If you are assigned exactly 49% of the blame or less, you are eligible to recover money for what happened to you. Some states allow you to be half responsible and still recover damages for your claim, as long as you are not more than half responsible. Those 21 states follow the 51% bar rule. You can imagine it like a tipping scale. Some states, like Utah and 12 others, believe that if the scale of blame is perfectly even, then the plaintiff should not be allowed to recover damages for their injury. Other states believe that plaintiffs should still be allowed to recover damages if the scale of blame is perfectly even. Only when it tips more towards the patient than the health care provider do they believe no damages should be awarded.

Once that blame/fault is assigned, if you are found to be less than 50% responsible for the injuries inflicted, then you will be entitled to the damages awarded by the court. However, the amount you are entitled to will be reduced by your percentage of the blame.

Let’s say you bled excessively during a procedure performed by your doctor, and the loss of blood caused significant injury. A court finds that your excessive bleeding was caused by a combination of an incorrect incision performed by the doctor and a failure on your part to properly disclose all of the medication you had taken prior to the procedure. The court ultimately finds that the doctor should have performed a different incision during the procedure and assigns the defendant 60% of the blame while assigning 40% of the blame to you for not properly disclosing your medications to your doctor prior to undergoing the procedure. Since you were awarded 40% of the blame, you would be able to recover a portion of damages because you were not found to have been 50% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $60,000 after the apportioned 40% of fault is applied.

Are there medical malpractice recovery caps in Utah?

In medical malpractice cases, Utah mandates that the damages awarded to a plaintiff be reduced by the amount of collateral sources that have already been paid to the patient. This means that a plaintiff cannot be reimbursed for medical expenses that were already covered by health insurance, other kinds of health-care covering insurances, Social Security, or a contract of any person or group that previously agreed to pay for and reimburse health care costs. Similarly, plaintiffs cannot receive damages for lost wages, if there was a contractual or voluntary wage continuation plan provided by employers or any other system, meant to provide wages during a period of disability. Any entity that provided collateral sources to the plaintiff must, at least 30 days before the trial settles, serve the defendant with a written notice stating:

(a) the name and address of the provider of collateral sources
(b) the amount of collateral sources paid
(c) the names and addresses of all persons who received payment
(d) the items and purposes for which payment has been made

Medical expenses and loss of wages are examples of ‘economic damages,’ or losses incurred by the plaintiff that are actually quantifiable.

There are recovery caps on others type of damages, that is, ‘noneconomic damages.’ Noneconomic damages may include permanent disability, disfigurement, blindness, loss of a limb, paralysis, trauma, physical pain, suffering, inconvenience, emotional distress and loss of consortium. Damage caps will vary based on when the cause of action for the claim arose. Depending on the year and allowing for inflation adjustments, these damages are not to exceed [7]:

• $250,000, for a cause of action arising before July 1, 2001
• $400,000, for a cause of action arising on or after July 1, 2001, and before July 1, 2002, limitation is adjusted for inflation
• $400,000, to be adjusted for inflation, for a cause of action arising on or after July 1, 2002, and before May 15, 2010
• $450,000, for a cause of action arising on or before May 15, 2010

Utah medical malpractice law does not specify a cap on punitive damages.

Expert witness reporting and testimony

To process and determine the merit of medical malpractice claims, Utah requires the consultation of a pre-litigation panel. When filing a claim of malpractice, the claimant will file a request for pre-litigation panel review. While these kinds of proceedings normally fall under the umbrella of arbitration/pre-trial settlement, here they are also necessary for determining the merit of a claim. The review of the panel is Utah’s stand-in for the “expert” reports which claimants are required to independently solicit and submit when they file a claim. The panel evaluates, among many other things, an affidavit of merit, and is required to issue an opinion as to whether the claim has merit or does not. [8]

Are some parties immune from medical negligence cases?

Utah stipulates an array of circumstances in which parties are immune from malpractice action. In addition, the Utah Governmental Immunity Act holds that no action may be brought against a government entity, or any government employee acting within their scope of their employment. [9] As in any state, this has spawned a series of lawsuits towards university medical facilities and their physicians, requiring the interpretation of complex legal minutia to determine if a government-employed medical professional may be held accountable for proven negligence. In other states, the results and rulings have varied. Emergency care is generally immunized from legal action. However even in cases of emergency care, the conduct of government medical personnel may be called into question/subject to suit if the employee was “grossly negligent,” caused the emergency themselves, or engaged in criminal conduct.

Utah’s laws regarding immune parties don’t vary wildly from those of other states. Emergency care rendered in good faith is, as mentioned, immune from suit. This applies to licensed professionals in the following disciplines:

• osteopathic physician
• physician and surgeon
• naturopathic physician
• dentist or dental hygienist
• chiropractic physician
• physician assistant
• optometrist
• licensed nurse
• podiatrist
• certified nurse midwife
• respiratory care practitioner
• pharmacist, pharmacy technician, and pharmacy intern (m) direct-entry midwife
• veterinarian

This immunity also applies to any member of a medical reserve corps or any training member, or a volunteer health practitioner.

Healthcare rendered as a measure to control an epidemic or other contagious diseases, to investigate and control bioterrorism, or carried out in response to a public health emergency is not liable for civil damages.

However, measures protecting emergency care from liability do not apply if a patient-provider relationship existed, the provider had seen the patient in the last three months, or they had immediate access to the patient’s medical records.

In addition to the aforementioned instances of immunity, Utah sought to make it easier for charitable health care to be provided for uninsured individuals who could not afford healthcare on their own. In turn, the state mandated a limitation on liability for charitable or volunteer health care. Treatment within the scope of a health care provider’s license for which they received no compensation (so, volunteer care) is not liable for damages. This only applies of course, if their lack of compensation is acknowledged in writing and the patient knowingly signs a document waiving any right to sue. [10]

Settling medical malpractice cases in UT

Utah mandates the use of a prelitigation hearing panel. Proceedings of the hearing are meant to be informal, nonbinding, confidential and immune from civil process. Nevertheless, they are a compulsory requirement before one can commence litigation. When filing a request for a pre-litigation panel, the claimant must include a copy of the notice of intent which initiated the claim. The panel consists of one licensed lawyer, licensed medical professional, a “lay panelist” who is neither a lawyer nor medical professional. Panel members have issued orders for participation in the panel if their circumstances permit them, like jury duty. [11] Medical records may be subpoenaed by a prelitigation panel for review. It is the panel’s duty to determine:

(i) if each claim against each health care provider has merit or has no merit; and

(ii) if a claim is meritorious, whether the conduct complained of resulted in harm to the claimant.

A panel may also choose to whom fault should be allocated. [12]

Upon written agreement between all parties involved, a pre-litigation panel proceeding may be considered a binding arbitration hearing. If the case is arbitrated (settled outside of court) by use of a pre-litigation panel, then the parties must compensate the members of the panel. [13]

A health care provider may ask a patient to sign an arbitration agreement prior to administering care which would force the patient to waive their rights to a trial by jury, forcing them to arbitrate any possible claim of malpractice during care. There is no obligation to sign such an agreement prior to care, so a patient may decline. [14]

Litigating medical negligence cases in Utah

If no agreement is reached between disputing parties prior to trial, then a claimant may forward in initiating a malpractice case. Litigation is a complex, multi-step undertaking that requires skilled legal counsel – having a good lawyer by your side will help soothe the apprehension you might’ve felt were you going into a trial alone.

Initiating the case

To begin litigation for a malpractice claim, you will start with a notice of intent to commence an action. This notice must be given at least 90 days prior to any other legal action. A malpractice action also may not begin until the plaintiff has received a certificate of compliance from the Division of Occupational and Professional Licensing. The affidavit of merit, signed by a licensed health care provider, upholding the merit of claim (discussed above) must be filed in order to receive the certificate of compliance. The notice to the prospective defendant must include a general statement of the claim, those involved, the date, time and place of the incident, the circumstances of the claim, specific allegations of the defendant’s misconduct and the alleged injuries and damages. [15] Do not state a dollar amount of damages sought. [16]

Preparing for litigation

After the complaint and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents or
• Requests for admission

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. Depositions are usually taken before an officer who is authorized to administer oaths or before a person appointed by the court where the case is scheduled to go to trial. The deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. Most witnesses may be deposed, including:

• Independent expert witnesses
• Treating physicians
• Any party named in the case

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Pretrial litigation

Involved parties may at any point prior to trial agree to settle their case outside of court. This option is meant to alleviate the costs, pressure, and time commitment of formal litigation.

Trial

If no pretrial settlement can be reached, the case will go to trial. Bear in mind that formal trial is a very lengthy and tedious process. All admissible evidence will be presented before a trier of fact, meaning a judge or jury. Potential jurors are questioned by each party’s attorney to screen for biases that may hurt or unfairly influence the outcome of a case.

The plaintiff’s attorney will argue their case after opening statements from both sides. Witnesses will be called to the stand, questioned, and likely will be cross-examined. The plaintiff then rests their case and the defendant’s attorney takes the floor. They will attempt to prove that negligence was not the cause of the injury incurred by the patient. After these courtroom proceedings, a jury will deliberate and come back with a finding, if it was a trial by jury and not exclusively by a judge.

Appeal

Whichever parties “loses” the case, they are more than likely to file an appeal of the court’s decision. While this is not a certainty, it is a very strong possibility. There is a general 30-day deadline to file appeals – courts do not favor parties that attempt to file appeals after this deadline.

How to find the best Utah Medical Malpractice Lawyer for your case

Your selection of legal representation in your Utah medical malpractice claim could have a great bearing on the outcome of your case. Given the great pain and losses you have no doubt suffered from the negligence of a health care professional, you want to see justice carried out and receive compensation for the hardships you’ve endured. Your case needs legal representation of the highest caliber, and you deserve an attorney entirely devoted to your cause.

Things to remember when looking for an attorney are foremost, that they are serving you and need to suit your needs. Do not feel pressured to hire an attorney on the spot. With some time limits stretching on for months, there is often not a great urgency to hire an attorney the same day you interview them. Interview as many as you’d like, as long as you are still within a comfortable window of time. Narrow your search down to the best and most viable candidates. Weight the pros and cons of each, and then make a steady, un-pressured and informed decision. Regarding criteria for selecting the right attorney for you, look for knowledge and case experience above all. Lawyers who have experience in cases with great similarity to yours may be a good pick, as they have an informed understanding of the time frames involved, damages you may be entitled to, and the overall costs of litigating that kind of case. You will also want to ensure that you and your attorney communicate well. Solid communication will help eliminate the risk of rifts or accidental omission of pertinent information.

Some notable medical malpractice law decisions from Utah

Jeffs V West

Jeffs V West was a fascinating case that reevaluated the legal necessity for a preexisting patient-provider relationship, and whether it reasonably exempted providers from certain duties owed to the patient. David Ragsdale was prescribed the medications Concerta, Valium, Doxepin, Paxil, pregnenolone, and testosterone simultaneously by a nurse practitioner at Pioneer Comprehensive Medical Clinic. With this bevy of drugs in his system, Ragsdale shot and killed his wife; subsequently he pled guilty to aggravated murder. The Ragsdales’ now parentless children filed a medical malpractice suit through their conservator, alleging negligence on the part of the nurse. Defendants filed a motion to have the claim dismissed on the grounds that no prior provider-patient relationship existed at the time of the alleged malpractice, thus the defendants owed no duty of care. The district court granted this motion and the Utah Supreme Court reversed it. The case worked to clarify that a lack of patient-provider relationship did not exempt a provider from the duty of care owed to a patient – this included not carelessly prescribing a multitude of drugs at once – and determined that the requirement of patient-provider relationship largely applied to cases of omission, failure to act and informed consent. If a case called an affirmative action into question and alleged negligence, the patient-provider relationship criterion was not mandatory. The case further examined where to draw the line of health care providers’ responsibilities to non-patient third parties. The court cited the case of a mentally ill man who was released from a facility’s care and proceeded to harm others. Those who filed suit against the facility claimed that the hospital was obliged to warn them about the man’s danger if they saw fit to release him. Failure to act, or nonfeasance, is only a liability if a special relationship existed between the patient and provider. So, only in cases of nonfeasance is a relationship absolutely legally necessary. Malpractice cases in which affirmative action gave rise to the claim, no relationship is necessary. [17]

Footnotes

[1] Utah Code Ann. § 78B-3-402

[2] Utah Code Ann. § 78B-3-403 (37)

[3] Utah Code Ann. § 78B-3-404 (1) (2)

[4] Utah Code Ann. § 78B-3-403 (10) (11) (12)

[5] Utah Code Ann. § 78B-3-406

[6] Utah Code Ann. § 78B-5-818

[7] Utah Code Ann. § 78B-3-410

[8] Utah Code Ann. § 78B-3-416

[9] Utah Code Ann. § 78B-3-415

[10] Utah Code Ann. § 58-13-2

[11] Utah Code Ann. § 78B-3-416 (1)(c) (2)(a) (4)

[12] Utah Code Ann. § 78B-3-418

[13] Utah Code Ann. § 78B-3-420

[14] Utah Code Ann. § 78B-3-421

[15] Utah Code Ann. § 78B-3-412

[16] Utah Code Ann. § 78B-3-409

[17] Jeffs v. West, 2012 WL 621341, 2012 UT 11