Senator Daniel Hemmert proposes the following substitute bill:


1     
UTAH HEALTH CARE MALPRACTICE ACT AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Daniel Hemmert

5     
House Sponsor: Michael S. Kennedy

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions of the Utah Health Care Malpractice Act.
10     Highlighted Provisions:
11          This bill:
12          ▸     requires a health care provider that signs an affidavit of merit to provide certain
13     information to the Division of Occupational and Professional Licensing;
14          ▸     requires the Division of Occupational and Professional Licensing to request and
15     compile certain information related to a request for a medical liability pre-litigation
16     panel review;
17          ▸     amends the elements of a nonplaintiff cause of action; and
18          ▸     makes technical changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          78B-3-423, as enacted by Laws of Utah 2010, Chapter 97
26          78B-3-426, as enacted by Laws of Utah 2016, Chapter 257
27     

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 78B-3-423 is amended to read:
30          78B-3-423. Affidavit of merit.
31          (1) (a) [Before] For a cause of action that arises on or after July 1, 2010, before a
32     claimant may receive a certificate of compliance under Sections 78B-3-416 and 78B-3-418, a
33     claimant shall file an affidavit of merit under this section[:].
34          (b) The claimant shall file an affidavit of merit:
35          (i) within 60 days [of the date of the panel's] after the day on which the pre-litigation
36     panel issues an opinion, if the claimant receives a finding from the pre-litigation panel in
37     accordance with Section 78B-3-418 of non-meritorious for either:
38          (A) the claim of breach of applicable standard of care; or
39          (B) that the breach of care was the proximate cause of injury;
40          (ii) within 60 days [of the expiration of] after the day on which the time limit in
41     Subsection 78B-3-416(3)(b)(ii) expires, if a pre-litigation hearing is not held within the time
42     limits under Subsection 78B-3-416(3)(b)(ii); or
43          (iii) within 30 days [of the division's] after the day on which the division makes a
44     determination under Subsection 78B-3-416(3)(d)(ii)(B), if the division makes a determination
45     under Subsection 78B-3-416(3)(d)(ii)(B).
46          [(b)] (c) A claimant who is required to file an affidavit of merit under Subsection (1)(a)
47     shall:
48          (i) file the affidavit of merit with the division; and
49          (ii) serve each defendant with the affidavit of merit in accordance with Subsection
50     78B-3-412(3).
51          (2) The affidavit of merit shall:
52          (a) be executed by the claimant's attorney or the claimant if the claimant is proceeding
53     pro se, stating that the affiant has consulted with and reviewed the facts of the case with a
54     health care provider who has determined after a review of the medical record and other relevant
55     material involved in the particular action that there is a reasonable and meritorious cause for
56     the filing of a medical liability action; and
57          (b) include an affidavit signed by a health care provider who meets the requirements of
58     Subsection [(3), which states that in the health care provider's opinion] (4):
59          (i) stating that in the health care provider's opinion, there are reasonable grounds to
60     believe that the applicable standard of care was breached;
61          (ii) stating that in the health care provider's opinion, the breach was a proximate cause
62     of the injury claimed in the notice of intent to commence action; and
63          (iii) stating the reasons for the health care provider's opinion.
64          [(c)] (3) The statement required in Subsection (2)(b)(i) shall be waived if the claimant
65     received an opinion that there was a breach of the applicable standard of care under Subsection
66     78B-3-418(2)(a)(i).
67          [(3)] (4) A health care provider who signs [the] an affidavit [of merit] under Subsection
68     (2)(b) shall:
69          (a) if none of the respondents is a physician [licensed under Title 58, Chapter 67, Utah
70     Medical Practice Act,] or an osteopathic physician [licensed under Title 58, Chapter 68, Utah
71     Osteopathic Medical Practice Act], hold a current unrestricted license issued by the appropriate
72     licensing authority of Utah or another state in the same specialty or of the same class of license
73     as the respondents; or
74          (b) if at least one of the respondents is a physician [licensed under Title 58, Chapter 67,
75     Utah Medical Practice Act,] or an osteopathic physician [licensed under Title 58, Chapter 68,
76     Utah Osteopathic Medical Practice Act], hold a current unrestricted license issued by the
77     appropriate licensing authority of Utah or another state to practice medicine in all its branches.
78          [(4)] (5) A claimant's attorney or claimant may obtain up to a 60-day extension to file
79     the affidavit of merit if:
80          (a) the claimant or the claimant's attorney submits a signed affidavit for extension with
81     notice to the division attesting to the fact that the claimant is unable to submit an affidavit of
82     merit as required by this section because:
83          (i) a statute of limitations would impair the action; and
84          (ii) the affidavit of merit could not be obtained before the expiration of the statute of
85     limitations; and
86          (b) the claimant or claimant's attorney submits the affidavit for extension to each
87     named respondent in accordance with Subsection 78B-3-412(3) no later than 60 days after the
88     date specified in Subsection [(1)(a)(i)] (1)(b)(i).
89          [(5)] (6) (a) A claimant or claimant's attorney who submits allegations in an affidavit of
90     merit that are found to be without reasonable cause and untrue, based on information available
91     to the plaintiff at the time the affidavit was submitted to the division, is liable to the defendant
92     for the payment of reasonable expenses and reasonable attorney fees actually incurred by the
93     defendant or the defendant's insurer.
94          (b) An affidavit of merit is not admissible, and cannot be used for any purpose, in a
95     subsequent lawsuit based on the claim that is the subject of the affidavit, except for the purpose
96     of establishing the right to recovery under Subsection [(5)] (6)(c).
97          (c) A court, or arbitrator under Section 78B-3-421, may award costs and attorney fees
98     under Subsection [(5)] (6)(a) if the defendant files a motion for costs and attorney fees within
99     60 days of the judgment or dismissal of the action in favor of the defendant. The person
100     making a motion for attorney fees and costs may depose and examine the health care provider
101     who prepared the affidavit of merit under Subsection (2)(b).
102          [(6)] (7) If a claimant or the claimant's attorney does not file an affidavit of merit as
103     required by this section, the division may not issue a certificate of compliance for the claimant
104     and the malpractice action shall be dismissed by the court.
105          [(7)] (8) [This section applies to a cause of action that arises on or after July 1, 2010.]
106     For each request for prelitigation panel review under Subsection 78B-3-416(2)(b), the division
107     shall compile the following information:
108          (a) whether the cause of action arose on or after July 1, 2010;
109          (b) the number of respondents named in the request; and
110          (c) for each respondent named in the request:
111          (i) the respondent's license class;
112          (ii) if the respondent has a professional specialty, the respondent's professional
113     specialty;
114          (iii) if the division does not issue a certificate of compliance at the conclusion of the
115     prelitigation process, the reason a certificate was not issued;
116          (iv) if the division issues a certificate of compliance, the reason the certificate of
117     compliance was issued;
118          (v) if an affidavit of merit was filed by the claimant, for each health care provider who
119     submitted an affidavit under Subsection (2)(b):
120          (A) the health care provider's license class and professional specialty; and
121          (B) whether the health care provider meets the requirements of Subsection
122     78B-3-416(4)(b); and
123          (vi) whether the claimant filed an action in court against the respondent.
124          (9) The division may require the following persons to submit the information to the
125     division necessary for the division to comply with Subsection (8):
126          (a) a claimant;
127          (b) a respondent;
128          (c) a health care provider who submits an affidavit under Subsection (2)(b); and
129          (d) a medical liability pre-litigation panel.
130          Section 2. Section 78B-3-426 is amended to read:
131          78B-3-426. Nonpatient plaintiffs.
132          (1) For purposes of this section, a nonpatient plaintiff does not include a patient, as
133     defined in Subsection 78B-3-403(23).
134          (2) This section does not apply to a [healthcare] health care malpractice action brought
135     or seeking recovery under Section 30-2-11, 78B-3-106, 78B-3-107, or 78B-3-502.
136          (3) To establish a malpractice action against a health care provider, a nonpatient
137     plaintiff shall be required to show that:
138          (a) the health care provider owes a duty to the nonpatient plaintiff;
139          [(a)] (b) the nonpatient plaintiff suffered [an] a foreseeable injury;
140          [(b)] (c) the nonpatient plaintiff's injury was proximately caused by an act or omission
141     of the health care provider; and
142          [(c)] (d) the health care provider's act or omission was conduct that manifests a
143     knowing and reckless indifference toward, and a disregard of, the injury suffered by the
144     nonpatient plaintiff.