H.B. 188

1

MALPRACTICE AGAINST HEALTH CARE
2 PROVIDERS AMENDMENTS
3 1997 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: John L. Valentine
6 AN ACT RELATING TO JUDICIARY; ESTABLISHING A TIME LIMIT WITHIN WHICH
7 HEALTH CARE PROVIDER PRELITIGATION PANELS MUST BE CONDUCTED; AND
8 ALLOWING PARTIES TO STIPULATE TO BYPASS THE PRELITIGATION PANEL
9 PROCESS.
10 This act affects sections of Utah Code Annotated 1953 as follows:
11 AMENDS:
12 78-14-12, as last amended by Chapter 248, Laws of Utah 1996
13 Be it enacted by the Legislature of the state of Utah:
14 Section 1. Section 78-14-12 is amended to read:
15 78-14-12. Division to provide panel -- Exemption -- Procedures -- Statute of
16 limitations tolled -- Composition of panel -- Expenses -- Division authorized to set license
17 fees.
18 (1) (a) The division shall provide a hearing panel in alleged medical liability cases against
19 health care providers as defined in Section 78-14-3, except dentists.
20 (b) (i) The division shall establish procedures for prelitigation consideration of medical
21 liability claims for damages arising out of the provision of or alleged failure to provide health care.
22 (ii) The division may establish rules necessary to administer the process and procedures
23 related to prelitigation hearings and the conduct of prelitigation hearings in accordance with
24 Sections 78-14-12 through 78-14-16.
25 (c) The proceedings are informal, nonbinding, and are not subject to Title 63, Chapter 46b,
26 Administrative Procedures Act, but are compulsory as a condition precedent to commencing
27 litigation.

1 (d) Proceedings conducted under authority of this section are confidential, privileged, and
2 immune from civil process.
3 (2) (a) The party initiating a medical liability action shall file a request for prelitigation
4 panel review with the division within 60 days after the [filing] service of a statutory notice of
5 intent to commence action under Section 78-14-8.
6 (b) The request shall include a copy of the notice of intent to commence action. The
7 request shall be mailed to all health care providers named in the notice and request.
8 (3) (a) The filing of a request for prelitigation panel review under this section tolls the
9 applicable statute of limitations until the earlier of 60 days following the division's issuance of an
10 opinion by the prelitigation panel, or 60 days following the termination of jurisdiction by the
11 division as provided in this subsection. The division shall send any opinion [shall be sent] issued
12 by the panel to all parties by regular mail.
13 (b) (i) The division shall complete a prelitigation hearing under this section within 180
14 days after the filing of the request for prelitigation panel review, or within any longer period as
15 agreed upon in writing by all parties to the review.
16 (ii) If the prelitigation hearing has not been completed within the time limits established
17 in Subsection (3)(b)(i), the division has no further jurisdiction over the matter subject to review
18 and the claimant is considered to have complied with all conditions precedent required under this
19 section prior to the commencement of litigation.
20 (c) (i) The claimant and any respondent may agree by written stipulation that no useful
21 purpose would be served by convening a prelitigation panel under this section.
22 (ii) When the stipulation is filed with the division, the division shall within ten days after
23 receipt enter an order divesting itself of jurisdiction over the claim, as it concerns the stipulating
24 respondent, and stating that the claimant has complied with all conditions precedent to the
25 commencement of litigation regarding the claim.
26 (4) The division shall provide for and appoint an appropriate panel or panels to hear
27 complaints of medical liability and damages, made by or on behalf of any patient who is an alleged
28 victim of medical liability. The panels are composed of:
29 (a) one member who is a resident lawyer currently licensed and in good standing to
30 practice law in this state and who shall serve as chairman of the panel, who is appointed by the
31 division from among qualified individuals who have registered with the division indicating a

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1 willingness to serve as panel members, and a willingness to comply with the rules of professional
2 conduct governing lawyers in the state of Utah, and who has completed division training regarding
3 conduct of panel hearings;
4 (b) (i) one member who is a licensed health care provider listed under Section 78-14-3,
5 who is practicing and knowledgeable in the same specialty as the proposed defendant, and who
6 is appointed by the division in accordance with Subsection (5); or
7 (ii) in claims against only hospitals or their employees, one member who is an individual
8 currently serving in a hospital administration position directly related to hospital operations or
9 conduct that includes responsibility for the area of practice that is the subject of the liability claim,
10 and who is appointed by the division; and
11 (c) a lay panelist who is not a lawyer, doctor, hospital employee, or other health care
12 provider, and who is a responsible citizen of the state, selected and appointed by the division from
13 among individuals who have completed division training with respect to panel hearings.
14 (5) (a) Each person listed as a health care provider in Section 78-14-3 and practicing under
15 a license issued by the state, is obligated as a condition of holding that license to participate as a
16 member of a medical liability prelitigation panel at reasonable times, places, and intervals, upon
17 issuance, with advance notice given in a reasonable time frame, by the division of an Order to
18 Participate as a Medical Liability Prelitigation Panel Member.
19 (b) A licensee may be excused from appearance and participation as a panel member upon
20 the division finding participation by the licensee will create an unreasonable burden or hardship
21 upon the licensee.
22 (c) A licensee whom the division finds failed to appear and participate as a panel member
23 when so ordered, without adequate explanation or justification and without being excused for
24 cause by the division, may be assessed an administrative fine not to exceed $5,000.
25 (d) A licensee whom the division finds intentionally or repeatedly failed to appear and
26 participate as a panel member when so ordered, without adequate explanation or justification and
27 without being excused for cause by the division, may be assessed an administrative fine not to
28 exceed $5,000, and is guilty of unprofessional conduct.
29 (e) All fines collected under Subsections (5)(c) and (d) shall be deposited in the Physicians
30 Education Account created in Section 58-67a-1.
31 (6) Each person selected as a panel member shall certify, under oath, that he has no bias

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1 or conflict of interest with respect to any matter under consideration.
2 (7) Members of the prelitigation hearing panels shall receive per diem compensation and
3 travel expenses for attending panel hearings as established by rules of the division.
4 (8) (a) In addition to the actual cost of administering the licensure of health care providers,
5 the division may set license fees of health care providers within the limits established by law equal
6 to their proportionate costs of administering prelitigation panels.
7 (b) The claimant bears none of the costs of administering the prelitigation panel except
8 under Section 78-14-16.




Legislative Review Note
as of 6-25-96 9:41 AM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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