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7 LONG TITLE
8 General Description:
9 This bill addresses court-appointed therapists.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines terms;
13 ▸ addresses the filing of complaints with the Division of Occupational and
14 Professional Licensing about unlawful or unprofessional conduct by
15 court-appointed therapists;
16 ▸ addresses the filing of requests for prelitigation panel reviews for malpractice
17 actions against court-appointed therapists; and
18 ▸ makes technical and conforming changes.
19 Money Appropriated in this Bill:
20 None
21 Other Special Clauses:
22 None
23 Utah Code Sections Affected:
24 AMENDS:
25 58-60-112, as enacted by Laws of Utah 1994, Chapter 32
26 78B-3-416, as last amended by Laws of Utah 2020, Chapter 339
27 78B-3-418, as last amended by Laws of Utah 2016, Chapter 257
28 78B-3-420, as renumbered and amended by Laws of Utah 2008, Chapter 3
29 78B-3-423, as last amended by Laws of Utah 2018, Chapter 440
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31 Be it enacted by the Legislature of the state of Utah:
32 Section 1. Section 58-60-112 is amended to read:
33 58-60-112. Reporting of unprofessional or unlawful conduct -- Immunity from
34 liability -- Reporting conduct of court-appointed therapist.
35 (1) Upon learning of an act of unlawful or unprofessional conduct as defined in Section
36 58-60-102 by a person licensed under this chapter or an individual not licensed under this
37 chapter and engaged in acts or practices regulated under this chapter, that results in disciplinary
38 action by a licensed health care facility, professional practice group, or professional society, or
39 that results in a significant adverse impact upon the public health, safety, or welfare, the
40 following shall report the conduct in writing to the division within 10 days after learning of the
41 disciplinary action or the conduct unless the individual or person knows it has been reported:
42 (a) a licensed health care facility or organization in which an individual licensed under
43 this chapter engages in practice;
44 (b) an individual licensed under this chapter; and
45 (c) a professional society or organization whose membership is individuals licensed
46 under this chapter and which has the authority to discipline or expel a member for acts of
47 unprofessional or unlawful conduct.
48 (2) Any individual reporting acts of unprofessional or unlawful conduct by an
49 individual licensed under this chapter is immune from liability arising out of the disclosure to
50 the extent the individual furnishes the information in good faith and without malice.
51 (3) (a) As defined in this Subsection (3):
52 (i) "Court-appointed therapist" means a mental health therapist ordered by a court to
53 provide psychotherapeutic treatment to an individual, a couple, or a family in a domestic case.
54 (ii) "Domestic case" means a proceeding under:
55 (A) Title 30, Chapter 3, Divorce;
56 (B) Title 30, Chapter 4, Separate Maintenance;
57 (C) Title 30, Chapter 5, Grandparents;
58 (D) Title 30, Chapter 5a, Custody and Visitation for Individuals Other than Parents
59 Act;
60 (E) Title 78B, Chapter 7, Protective Orders and Stalking Injunctions;
61 (F) Title 78B, Chapter 13, Utah Uniform Child Custody Jurisdiction and Enforcement
62 Act; or
63 (G) Title 78B, Chapter 15, Utah Uniform Parentage Act.
64 (b) If a court appoints a court-appointed therapist in a domestic case, a party to the
65 domestic case may not file a report against the court-appointed therapist for unlawful or
66 unprofessional conduct during the pendency of the domestic case, unless:
67 (i) the party has requested that the court release the court-appointed therapist from the
68 appointment; and
69 (ii) the court finds good cause to release the court-appointed therapist from the
70 appointment.
71 Section 2. Section 78B-3-416 is amended to read:
72 78B-3-416. Division to provide panel -- Exemption -- Procedures -- Statute of
73 limitations tolled -- Composition of panel -- Expenses -- Division authorized to set license
74 fees.
75 (1) (a) The division shall provide a hearing panel in alleged medical liability cases
76 against health care providers as defined in Section 78B-3-403, except dentists.
77 (b) (i) The division shall establish procedures for prelitigation consideration of medical
78 liability claims for damages arising out of the provision of or alleged failure to provide health
79 care.
80 (ii) The division may establish rules necessary to administer the process and
81 procedures related to prelitigation hearings and the conduct of prelitigation hearings in
82 accordance with Sections 78B-3-416 through 78B-3-420.
83 (c) The proceedings are informal, nonbinding, and are not subject to Title 63G, Chapter
84 4, Administrative Procedures Act, but are compulsory as a condition precedent to commencing
85 litigation.
86 (d) Proceedings conducted under authority of this section are confidential, privileged,
87 and immune from civil process.
88 (e) The division may not provide more than one hearing panel for each alleged medical
89 liability case against a health care provider.
90 (2) (a) The party initiating a medical liability action shall file a request for prelitigation
91 panel review with the division within 60 days after the service of a statutory notice of intent to
92 commence action under Section 78B-3-412.
93 (b) The request shall include a copy of the notice of intent to commence action. The
94 request shall be mailed to all health care providers named in the notice and request.
95 (3) (a) As defined in this Subsection (3):
96 (i) "Court-appointed therapist" means a mental health therapist ordered by a court to
97 provide psychotherapeutic treatment to an individual, a couple, or a family in a domestic case.
98 (ii) "Domestic case" means a proceeding under:
99 (A) Title 30, Chapter 3, Divorce;
100 (B) Title 30, Chapter 4, Separate Maintenance;
101 (C) Title 30, Chapter 5, Grandparents;
102 (D) Title 30, Chapter 5a, Custody and Visitation for Individuals Other than Parents
103 Act;
104 (E) Title 78B, Chapter 7, Protective Orders and Stalking Injunctions;
105 (F) Title 78B, Chapter 13, Utah Uniform Child Custody Jurisdiction and Enforcement
106 Act; or
107 (G) Title 78B, Chapter 15, Utah Uniform Parentage Act.
108 (iii) "Mental health therapist" means the same as that term is defined in Section
109 58-60-102.
110 (b) If a court appoints a court-appointed therapist in a domestic case, a party to the
111 domestic case may not file a request for a prelitigation panel review for a malpractice action
112 against the court-appointed therapist during the pendency of the domestic case, unless:
113 (i) the party has requested that the court release the court-appointed therapist from
114 appointment; and
115 (ii) the court finds good cause to release the court-appointed therapist from the
116 appointment.
117 (c) If a party is prohibited from filing a request for a prelitigation panel review under
118 Subsection (3)(b), the applicable statute of limitations tolls until the earlier of:
119 (i) the court releasing the court-appointed therapist from appointment as described in
120 Subsection (3)(b); or
121 (ii) the court entering a final order in the domestic case.
122 [
123 the applicable statute of limitations until the later of:
124 (i) 60 days following the division's issuance of:
125 (A) an opinion by the prelitigation panel; or
126 (B) a certificate of compliance under Section 78B-3-418; or
127 (ii) the expiration of the time for holding a hearing under Subsection [
128 (b) The division shall:
129 (i) send any opinion issued by the panel to all parties by regular mail; and
130 (ii) complete a prelitigation hearing under this section within:
131 (A) 180 days after the filing of the request for prelitigation panel review; or
132 (B) any longer period as agreed upon in writing by all parties to the review.
133 (c) If the prelitigation hearing has not been completed within the time limits
134 established in Subsection [
135 (i) file an affidavit of merit under the provisions of Section 78B-3-423; or
136 (ii) file an affidavit with the division within 180 days of the request for pre-litigation
137 review, in accordance with Subsection [
138 reasonably cooperate in scheduling the hearing.
139 (d) If the claimant files an affidavit under Subsection [
140 (i) within 15 days of the filing of the affidavit under Subsection [
141 division shall determine whether either the respondent or the claimant failed to reasonably
142 cooperate in the scheduling of a pre-litigation hearing; and
143 (ii) (A) if the determination is that the respondent failed to reasonably cooperate in the
144 scheduling of a hearing, and the claimant did not fail to reasonably cooperate, the division
145 shall, issue a certificate of compliance for the claimant in accordance with Section 78B-3-418;
146 or
147 (B) if the division makes a determination other than the determination in Subsection
148 [
149 78B-3-423, within 30 days of the determination of the division under this Subsection [
150 (e) (i) The claimant and any respondent may agree by written stipulation that no useful
151 purpose would be served by convening a prelitigation panel under this section.
152 (ii) When the stipulation is filed with the division, the division shall within 10 days
153 after receipt issue a certificate of compliance under Section 78B-3-418, as it concerns the
154 stipulating respondent, and stating that the claimant has complied with all conditions precedent
155 to the commencement of litigation regarding the claim.
156 [
157 hear complaints of medical liability and damages, made by or on behalf of any patient who is
158 an alleged victim of medical liability. The panels are composed of:
159 (a) one member who is a resident lawyer currently licensed and in good standing to
160 practice law in this state and who shall serve as chairman of the panel, who is appointed by the
161 division from among qualified individuals who have registered with the division indicating a
162 willingness to serve as panel members, and a willingness to comply with the rules of
163 professional conduct governing lawyers in the state, and who has completed division training
164 regarding conduct of panel hearings;
165 (b) (i) one or more members who are licensed health care providers listed under
166 Section 78B-3-403, who are practicing and knowledgeable in the same specialty as the
167 proposed defendant, and who are appointed by the division in accordance with Subsection [
168 (6); or
169 (ii) in claims against only a health care facility or the facility's employees, one member
170 who is an individual currently serving in a health care facility administration position directly
171 related to health care facility operations or conduct that includes responsibility for the area of
172 practice that is the subject of the liability claim, and who is appointed by the division; and
173 (c) a lay panelist who is not a lawyer, doctor, hospital employee, or other health care
174 provider, and who is a responsible citizen of the state, selected and appointed by the division
175 from among individuals who have completed division training with respect to panel hearings.
176 [
177 practicing under a license issued by the state, is obligated as a condition of holding that license
178 to participate as a member of a medical liability prelitigation panel at reasonable times, places,
179 and intervals, upon issuance, with advance notice given in a reasonable time frame, by the
180 division of an Order to Participate as a Medical Liability Prelitigation Panel Member.
181 (b) A licensee may be excused from appearance and participation as a panel member
182 upon the division finding participation by the licensee will create an unreasonable burden or
183 hardship upon the licensee.
184 (c) A licensee whom the division finds failed to appear and participate as a panel
185 member when so ordered, without adequate explanation or justification and without being
186 excused for cause by the division, may be assessed an administrative fine not to exceed $5,000.
187 (d) A licensee whom the division finds intentionally or repeatedly failed to appear and
188 participate as a panel member when so ordered, without adequate explanation or justification
189 and without being excused for cause by the division, may be assessed an administrative fine not
190 to exceed $5,000, and is guilty of unprofessional conduct.
191 (e) All fines collected under Subsections [
192 the Physicians Education Fund created in Section 58-67a-1.
193 (f) The director of the division may collect a fine that is not paid by:
194 (i) referring the matter to a collection agency; or
195 (ii) bringing an action in the district court of the county where the person against whom
196 the penalty is imposed resides or in the county where the office of the director is located.
197 (g) A county attorney or the attorney general of the state shall provide legal assistance
198 and advice to the director in an action to collect a fine.
199 (h) A court shall award reasonable attorney fees and costs to the prevailing party in an
200 action brought by the division to collect a fine.
201 [
202 no bias or conflict of interest with respect to any matter under consideration.
203 [
204 benefits for the member's service, but may receive per diem and travel expenses in accordance
205 with:
206 (a) Section 63A-3-106;
207 (b) Section 63A-3-107; and
208 (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
209 63A-3-107.
210 [
211 providers, the division may set license fees of health care providers within the limits
212 established by law equal to their proportionate costs of administering prelitigation panels.
213 (b) The claimant bears none of the costs of administering the prelitigation panel except
214 under Section 78B-3-420.
215 Section 3. Section 78B-3-418 is amended to read:
216 78B-3-418. Decision and recommendations of panel -- No judicial or other review.
217 (1) (a) The panel shall issue an opinion and the division shall issue a certificate of
218 compliance with the pre-litigation hearing requirements of this part in accordance with this
219 section.
220 (b) A certificate of compliance issued in accordance with this section is proof that the
221 claimant has complied with all conditions precedent under this part prior to the commencement
222 of litigation as required in Subsection 78B-3-412(1).
223 (2) (a) The panel shall render its opinion in writing not later than 30 days after the end
224 of the proceedings, and determine on the basis of the evidence whether:
225 (i) each claim against each health care provider has merit or has no merit; and
226 (ii) if a claim is meritorious, whether the conduct complained of resulted in harm to the
227 claimant.
228 (b) There is no judicial or other review or appeal of the panel's decision or
229 recommendations.
230 (3) The division shall issue a certificate of compliance to the claimant, for each
231 respondent named in the intent to file a claim under this part, if:
232 (a) for a named respondent, the panel issues an opinion of merit under Subsections
233 (2)(a)(i) and (ii);
234 (b) for a named respondent, the claimant files an affidavit of merit in accordance with
235 Section 78B-3-423 if the opinion under Subsection (1)(a) is non-meritorious under either
236 Subsection (2)(a)(i) or (ii);
237 (c) the claimant has complied with the provisions of Subsections 78B-3-416[
238 and (d); or
239 (d) the parties submitted a stipulation under Subsection 78B-3-416[
240 Section 4. Section 78B-3-420 is amended to read:
241 78B-3-420. Proceedings considered a binding arbitration hearing upon written
242 agreement of parties -- Compensation to members of panel.
243 Upon written agreement by all parties, the proceeding may be considered a binding
244 arbitration hearing and proceed under Title 78B, Chapter 11, Utah Uniform Arbitration Act,
245 except for the selection of the panel, which is done as set forth in Subsection
246 78B-3-416[
247 equally responsible for compensation to the members of the panel for services rendered.
248 Section 5. Section 78B-3-423 is amended to read:
249 78B-3-423. Affidavit of merit.
250 (1) (a) For a cause of action that arises on or after July 1, 2010, before a claimant may
251 receive a certificate of compliance under Sections 78B-3-416 and 78B-3-418, a claimant shall
252 file an affidavit of merit under this section.
253 (b) The claimant shall file an affidavit of merit:
254 (i) within 60 days after the day on which the pre-litigation panel issues an opinion, if
255 the claimant receives a finding from the pre-litigation panel in accordance with Section
256 78B-3-418 of non-meritorious for either:
257 (A) the claim of breach of applicable standard of care; or
258 (B) that the breach of care was the proximate cause of injury;
259 (ii) within 60 days after the day on which the time limit in Subsection
260 78B-3-416[
261 under Subsection 78B-3-416[
262 (iii) within 30 days after the day on which the division makes a determination under
263 Subsection 78B-3-416[
264 78B-3-416[
265 (c) A claimant who is required to file an affidavit of merit under Subsection (1)(a)
266 shall:
267 (i) file the affidavit of merit with the division; and
268 (ii) serve each defendant with the affidavit of merit in accordance with Subsection
269 78B-3-412(3).
270 (2) The affidavit of merit shall:
271 (a) be executed by the claimant's attorney or the claimant if the claimant is proceeding
272 pro se, stating that the affiant has consulted with and reviewed the facts of the case with a
273 health care provider who has determined after a review of the medical record and other relevant
274 material involved in the particular action that there is a reasonable and meritorious cause for
275 the filing of a medical liability action; and
276 (b) include an affidavit signed by a health care provider who meets the requirements of
277 Subsection (4):
278 (i) stating that in the health care provider's opinion, there are reasonable grounds to
279 believe that the applicable standard of care was breached;
280 (ii) stating that in the health care provider's opinion, the breach was a proximate cause
281 of the injury claimed in the notice of intent to commence action; and
282 (iii) stating the reasons for the health care provider's opinion.
283 (3) The statement required in Subsection (2)(b)(i) shall be waived if the claimant
284 received an opinion that there was a breach of the applicable standard of care under Subsection
285 78B-3-418(2)(a)(i).
286 (4) A health care provider who signs an affidavit under Subsection (2)(b) shall:
287 (a) if none of the respondents is a physician or an osteopathic physician, hold a current
288 unrestricted license issued by the appropriate licensing authority of Utah or another state in the
289 same specialty or of the same class of license as the respondents; or
290 (b) if at least one of the respondents is a physician or an osteopathic physician, hold a
291 current unrestricted license issued by the appropriate licensing authority of Utah or another
292 state to practice medicine in all its branches.
293 (5) A claimant's attorney or claimant may obtain up to a 60-day extension to file the
294 affidavit of merit if:
295 (a) the claimant or the claimant's attorney submits a signed affidavit for extension with
296 notice to the division attesting to the fact that the claimant is unable to submit an affidavit of
297 merit as required by this section because:
298 (i) a statute of limitations would impair the action; and
299 (ii) the affidavit of merit could not be obtained before the expiration of the statute of
300 limitations; and
301 (b) the claimant or claimant's attorney submits the affidavit for extension to each
302 named respondent in accordance with Subsection 78B-3-412(3) no later than 60 days after the
303 date specified in Subsection (1)(b)(i).
304 (6) (a) A claimant or claimant's attorney who submits allegations in an affidavit of
305 merit that are found to be without reasonable cause and untrue, based on information available
306 to the plaintiff at the time the affidavit was submitted to the division, is liable to the defendant
307 for the payment of reasonable expenses and reasonable attorney fees actually incurred by the
308 defendant or the defendant's insurer.
309 (b) An affidavit of merit is not admissible, and cannot be used for any purpose, in a
310 subsequent lawsuit based on the claim that is the subject of the affidavit, except for the purpose
311 of establishing the right to recovery under Subsection (6)(c).
312 (c) A court, or arbitrator under Section 78B-3-421, may award costs and attorney fees
313 under Subsection (6)(a) if the defendant files a motion for costs and attorney fees within 60
314 days of the judgment or dismissal of the action in favor of the defendant. The person making a
315 motion for attorney fees and costs may depose and examine the health care provider who
316 prepared the affidavit of merit under Subsection (2)(b).
317 (7) If a claimant or the claimant's attorney does not file an affidavit of merit as required
318 by this section, the division may not issue a certificate of compliance for the claimant and the
319 malpractice action shall be dismissed by the court.
320 (8) For each request for prelitigation panel review under Subsection 78B-3-416(2)(b),
321 the division shall compile the following information:
322 (a) whether the cause of action arose on or after July 1, 2010;
323 (b) the number of respondents named in the request; and
324 (c) for each respondent named in the request:
325 (i) the respondent's license class;
326 (ii) if the respondent has a professional specialty, the respondent's professional
327 specialty;
328 (iii) if the division does not issue a certificate of compliance at the conclusion of the
329 prelitigation process, the reason a certificate was not issued;
330 (iv) if the division issues a certificate of compliance, the reason the certificate of
331 compliance was issued;
332 (v) if an affidavit of merit was filed by the claimant, for each health care provider who
333 submitted an affidavit under Subsection (2)(b):
334 (A) the health care provider's license class and professional specialty; and
335 (B) whether the health care provider meets the requirements of Subsection
336 78B-3-416[
337 (vi) whether the claimant filed an action in court against the respondent.
338 (9) The division may require the following persons to submit the information to the
339 division necessary for the division to comply with Subsection (8):
340 (a) a claimant;
341 (b) a respondent;
342 (c) a health care provider who submits an affidavit under Subsection (2)(b); and
343 (d) a medical liability pre-litigation panel.