S.B. 145

1

MEDICAL MALPRACTICE AMENDMENTS
2 2010 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: J. Stuart Adams
5 House Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill amends the Utah Health Care Malpractice Act.
10 Highlighted Provisions:
11 This bill:
12 . creates a statute of repose so that all claims must be brought within 10 years or they
13 are barred;
14 . reduces a malpractice award by an amount equal to settlement awards;
15 . amends the cap on non-economic damages that may be awarded in a malpractice
16 action;
17 . limits the amount of the malpractice damages an attorney may keep as fees;
18 . requires an affidavit of merit from a health care professional before a malpractice
19 action is started; and
20 . limits the liability of a health care provider, in certain circumstances, for the acts or
21 omissions of an ostensible agent.
22 Monies Appropriated in this Bill:
23 None
24 Other Special Clauses:
25 None
26 Utah Code Sections Affected:
27 AMENDS:

28 78B-3-404, as renumbered and amended by Laws of Utah 2008, Chapter 3
29 78B-3-410, as renumbered and amended by Laws of Utah 2008, Chapter 3
30 78B-3-411, as renumbered and amended by Laws of Utah 2008, Chapter 3
31 78B-3-412, as renumbered and amended by Laws of Utah 2008, Chapter 3
32 ENACTS:
33 78B-3-405.5, Utah Code Annotated 1953
34 78B-3-423, Utah Code Annotated 1953
35 78B-3-424, Utah Code Annotated 1953
36
37 Be it enacted by the Legislature of the state of Utah:
38 Section 1. Section 78B-3-404 is amended to read:
39 78B-3-404. Statute of limitations -- Exceptions -- Application.
40 (1) A malpractice action against a health care provider shall be commenced within two
41 years after the plaintiff or patient discovers, or through the use of reasonable diligence should
42 have discovered the injury, whichever first occurs, but not to exceed four years after the date of
43 the alleged act, omission, neglect, or occurrence.
44 (2) Notwithstanding Subsection (1):
45 (a) in an action where the allegation against the health care provider is that a foreign
46 object has been wrongfully left within a patient's body, the claim shall be barred unless
47 commenced within one year after the plaintiff or patient discovers, or through the use of
48 reasonable diligence should have discovered, the existence of the foreign object wrongfully left
49 in the patient's body, whichever first occurs; or
50 (b) in an action where it is alleged that a patient has been prevented from discovering
51 misconduct on the part of a health care provider because that health care provider has
52 affirmatively acted to fraudulently conceal the alleged misconduct, the claim shall be barred
53 unless commenced within one year after the plaintiff or patient discovers, or through the use of
54 reasonable diligence, should have discovered the fraudulent concealment, whichever first
55 occurs.
56 (3) The limitations in [this section] Subsections (1) and (2) shall apply to all persons,
57 regardless of minority or other legal disability under Section 78B-2-108 or any other provision
58 of the law.

59 (4) (a) A parent or guardian of a minor under the age of 10 years is obligated to file, on
60 the minor's behalf, before the minor's 14th birthday, any malpractice claim the minor may have
61 against a health care provider for a claim that occurred before the minor's 10th birthday, unless
62 the parent or guardian has a conflict of interest in filing the claim.
63 (b) Notwithstanding any other law, a minor, or anyone on behalf of a minor, may not
64 file a medical malpractice action after the minor's 14th birthday if the malpractice action is
65 based on an allegation of malpractice that occurred before the minor was 10 years of age.
66 (c) This Subsection (4) applies to all minors regardless of other legal disability under
67 Section 78B-2-108 or any other provision of the law. This Subsection (4) is intended as a
68 statute of repose to limit the potential long-term liability of health care providers to minors
69 under the age of 14 years.
70 Section 2. Section 78B-3-405.5 is enacted to read:
71 78B-3-405.5. Amount of award reduced by settlements with other parties.
72 (1) If the plaintiff has settled with one or more persons in a malpractice action against a
73 health care provider as defined in Section 78B-3-403 in which damages are awarded to
74 compensate the plaintiff for losses sustained, the court shall reduce the amount of the award by
75 an amount equal to one of the following, as elected by the defendant:
76 (a) the sum of the dollar amounts of all settlements; or
77 (b) a percentage equal to each settling person's percentage of responsibility as found by
78 the trier of fact.
79 (2) An election made under Subsection (1) shall be made by any defendant filing a
80 written election before the issues of the action are submitted to the trier of fact and when made,
81 shall be binding on all defendants. If no defendant makes this election or if conflicting
82 elections are made, all defendants are considered to have elected Subsection (1)(a).
83 Section 3. Section 78B-3-410 is amended to read:
84 78B-3-410. Limitation of award of noneconomic damages in malpractice actions.
85 (1) (a) In a malpractice action against [a health care provider, an injured plaintiff may
86 recover noneconomic losses] one or more health care providers, all injured plaintiffs asserting a
87 claim in the action may recover noneconomic damages, in accordance with Subsection (1)(b),
88 to compensate for non-economic losses, such as pain, suffering, [and] inconvenience[. The],
89 and loss of society and companionship.

90 (b) Regardless of the number of plaintiffs or defendants in a malpractice action, the
91 aggregate amount of damages awarded [for] against all defendants in the malpractice action,
92 for all types of noneconomic loss, may not exceed:
93 [(a)] (i) for a cause of action arising before July 1, 2001, $250,000;
94 [(b)] (ii) for a cause of action arising on or after July 1, 2001 and before July 1, 2002,
95 the limitation is adjusted for inflation to $400,000; [and]
96 [(c)] (iii) for a cause of action arising on or after July 1, 2002, and before May 1, 2010,
97 the $400,000 limitation described in Subsection (1)(b) shall be adjusted for inflation as
98 provided in Subsection (2)[.]; and
99 (iv) for a cause of action arising on or after May 1, 2010, $250,000.
100 (2) (a) Beginning July 1, 2002 and each July 1 thereafter until July 1, 2009, the limit
101 for damages under Subsection (1)[(c)](b) shall be adjusted for inflation by the state treasurer.
102 (b) By July 15 of each year, until July 15, 2009, the state treasurer shall:
103 (i) certify the inflation-adjusted limit calculated under this Subsection (2); and
104 (ii) inform the Administrative Office of the Courts of the certified limit.
105 (c) The amount resulting from Subsection (2)(a) shall:
106 (i) be rounded to the nearest $10,000; and
107 (ii) apply to a cause of action arising on or after the date the annual adjustment is made.
108 (3) As used in this section, "inflation" means the seasonally adjusted consumer price
109 index for all urban consumers as published by the Bureau of Labor Statistics of the United
110 States Department of Labor.
111 (4) The limit under Subsection (1) does not apply to awards of punitive damages.
112 Section 4. Section 78B-3-411 is amended to read:
113 78B-3-411. Limitation on attorney contingency fee in malpractice action.
114 (1) In any malpractice action against a health care provider as defined in Section
115 78B-3-403 , an attorney may not collect a contingent fee for representing a client seeking
116 damages in connection with or arising out of personal injury or wrongful death caused by the
117 negligence of another which exceeds:
118 (a) 33-1/3% of the first $100,000 amount recovered[.];
119 (b) 25% of the next $500,000 amount recovered; and
120 (c) 15% of any amount recovered over $600,000.

121 (2) [This] (a) The limitation on attorney fees in Subsection (1) applies regardless of
122 whether the recovery is by settlement, arbitration, judgment, or whether appeal is involved.
123 (b) A retainer agreement or contract between a person and an attorney which contains a
124 provision for recovery of attorney fees that exceed the amount provided for in Subsection (1) is
125 void as a matter of law.
126 Section 5. Section 78B-3-412 is amended to read:
127 78B-3-412. Notice of intent to commence action.
128 (1) A malpractice action against a health care provider may not be initiated unless and
129 until the plaintiff gives the prospective defendant or his executor or successor, at least 90 days'
130 prior notice of intent to commence an action.
131 (2) The notice shall include:
132 (a) a general statement of the nature of the claim;
133 (b) the persons involved;
134 (c) the date, time, and place of the occurrence;
135 (d) the circumstances surrounding the claim;
136 (e) specific allegations of misconduct on the part of the prospective defendant; [and]
137 (f) the nature of the alleged injuries and other damages sustained[.]; and
138 (g) an affidavit of merit as provided in Section 78B-3-423 .
139 (3) Notice may be in letter or affidavit form executed by the plaintiff or his attorney.
140 Service shall be accomplished by persons authorized and in the manner prescribed by the Utah
141 Rules of Civil Procedure for the service of the summons and complaint in a civil action or by
142 certified mail, return receipt requested, in which case notice shall be considered served on the
143 date of mailing.
144 (4) Notice shall be served within the time allowed for commencing a malpractice
145 action against a health care provider. If the notice is served less than 90 days prior to the
146 expiration of the applicable time period, the time for commencing the malpractice action
147 against the health care provider shall be extended to 120 days from the date of service of
148 notice.
149 (5) This section shall, for purposes of determining its retroactivity, not be construed as
150 relating to the limitation on the time for commencing any action, and shall apply only to causes
151 of action arising on or after April 1, 1976. This section shall not apply to third party actions,

152 counterclaims or crossclaims against a health care provider.
153 Section 6. Section 78B-3-423 is enacted to read:
154 78B-3-423. Affidavit of merit.
155 (1) Except as provided in Subsection (4), the party initiating a medical liability action
156 through the notice of intent to commence action under Section 78B-3-412 shall in accordance
157 with this section:
158 (a) prepare an affidavit of merit for each named defendant;
159 (b) include the affidavit of merit for each named defendant with the notice of intent to
160 commence action; and
161 (c) serve the notice of intent to commence action and the accompanying affidavit of
162 merit in accordance with Subsection 78B-3-412 (3).
163 (2) The affidavit of merit shall:
164 (a) be executed by the plaintiff's attorney or the plaintiff if the plaintiff is proceeding
165 pro se, stating that the affiant has consulted with and reviewed the facts of the case with a
166 health care provider who has determined after a review of the medical record and other relevant
167 material involved in the particular action that there is a reasonable and meritorious cause for
168 the filing of a medical liability action against the named defendant; and
169 (b) include a statement signed by a health care provider who meets the requirements of
170 Subsection (3), which:
171 (i) states that in the health care provider's opinion:
172 (A) there are reasonable grounds to believe that the applicable standard of care was
173 breached by the named defendant;
174 (B) the breach was a proximate cause of the injury claimed in the notice of intent to
175 commence action; and
176 (C) the reasons for the health care provider's opinion; and
177 (ii) clearly identifies:
178 (A) the name and address of:
179 (I) the plaintiff;
180 (II) the defendant; and
181 (III) the reviewing health care provider; and
182 (B) the reviewing health care provider's:

183 (I) profession or specialty;
184 (II) board certifications;
185 (III) state of licensure and license number; and
186 (IV) whether the health care provider currently treats patients or teaches in an academic
187 setting in the same or similar field of medicine as the defendant in both the year immediately
188 preceding the alleged negligent act and in the past five years prior to signing the affidavit.
189 (3) A health care provider who signs the affidavit of merit under Subsection (2) shall:
190 (a) if the defendant is not a physician licensed under Title 58, Chapter 67, Utah
191 Medical Practice Act, or an osteopathic physician licensed under Title 58, Chapter 68, Utah
192 Osteopathic Medical Practice Act, hold a current unrestricted license issued by the appropriate
193 licensing authority of Utah or another state in the same specialty or of the same class of license
194 as the defendant; or
195 (b) if the defendant is a physician licensed under Title 58, Chapter 67, Utah Medical
196 Practice Act, or an osteopathic physician licensed under Title 58, Chapter 68, Utah Osteopathic
197 Medical Practice Act, hold a current unrestricted license issued by the appropriate licensing
198 authority of Utah or another state to practice medicine in all its branches, and qualified by
199 experience with the standard of care, methods, procedures, and treatments relevant to the
200 allegations at issue in the case.
201 (4) A plaintiff's attorney or plaintiff may obtain up to a 60-day extension to file the
202 affidavit of merit if:
203 (a) the plaintiff or the plaintiff's attorney submits a signed affidavit with the notice of
204 intent to commence action attesting to the fact that the plaintiff is unable to submit an affidavit
205 of merit as required by this section because:
206 (i) a statute of limitations would impair the action; and
207 (ii) the affidavit of merit could not be obtained before the expiration of the statute of
208 limitations; and
209 (b) the plaintiff or plaintiff's attorney submits the affidavit of merit to each named
210 defendant in accordance with Subsection 78B-3-412 (3) no later than 60 days after service of
211 the notice of intent to commence action.
212 (5) (a) A plaintiff or plaintiff's attorney who submits allegations in an affidavit of merit
213 that are found to be without reasonable cause and untrue is liable to the named defendant for

214 the payment of reasonable expenses and reasonable attorney fees actually incurred by the
215 named defendant or the named defendant's insurer.
216 (b) A court, or arbitrator under Section 78B-3-421 , may award costs and attorney fees
217 under Subsection (5)(a) if the defendant files a motion for cost and attorney fees within 30 days
218 of the judgment or dismissal of the action. The person making a motion for attorney fees and
219 costs may depose and examine the health care provider who prepared the affidavit of merit.
220 (6) If a plaintiff or the plaintiff's attorney does not file an affidavit of merit as required
221 by this section for a particular defendant, the malpractice action against the defendant shall be
222 dismissed.
223 (7) This section applies to a cause of action that arises on or after July 1, 2010.
224 Section 7. Section 78B-3-424 is enacted to read:
225 78B-3-424. Limitation of liability for ostensible agent.
226 (1) For purposes of this section:
227 (a) "Agent" means a person who is an "employee," "worker," or "operative," as defined
228 in Section 34A-2-104 , of a health care provider.
229 (b) "Ostensible agent" means a person:
230 (i) who is not an agent of the health care provider; and
231 (ii) who the plaintiff reasonably believes is an agent of the health care provider because
232 the health care provider intentionally, or as a result of a lack of ordinary care, caused the
233 plaintiff to believe that the person was an agent of the health care provider.
234 (2) A health care provider named as a defendant in a medical malpractice action is not
235 liable for the acts or omissions of an ostensible agent if:
236 (a) the health care provider has by policy or practice, ensured that a person providing
237 independent professional services has insurance of a type and amount required by the rules or
238 regulations for the medical staff as established in:
239 (i) medical staff by-laws for a health care facility; or
240 (ii) other similar health care facility rules or regulations; and
241 (b) the insurance required in Subsection (2)(a) is in effect at the time of the alleged act
242 or omission of the ostensible agent.
243 (3) This section applies to a cause of action that arises on or after July 1, 2010.

Legislative Review Note
as of 2-2-10 10:08 AM

Office of Legislative Research and General Counsel