Chief Sponsor: Jordan D. Teuscher

Senate Sponsor: Michael S. Kennedy


8     General Description:
9          This bill amends the Utah Health Care Malpractice Act.
10     Highlighted Provisions:
11          This bill:
12          ▸     exempts dental care providers from the requirement for a prelitigation hearing panel
13     in a health care malpractice action.
14     Money Appropriated in this Bill:
15          None
16     Other Special Clauses:
17          None
18     Utah Code Sections Affected:
19     AMENDS:
20          78B-3-403, as last amended by Laws of Utah 2019, Chapter 349
21          78B-3-412, as last amended by Laws of Utah 2010, Chapter 97
22          78B-3-416, as last amended by Laws of Utah 2020, Chapter 339

24     Be it enacted by the Legislature of the state of Utah:
25          Section 1. Section 78B-3-403 is amended to read:
26          78B-3-403. Definitions.
27          As used in this part:

28          (1) "Audiologist" means a person licensed to practice audiology under Title 58,
29     Chapter 41, Speech-Language Pathology and Audiology Licensing Act.
30          (2) "Certified social worker" means a person licensed to practice as a certified social
31     worker under Section 58-60-205.
32          (3) "Chiropractic physician" means a person licensed to practice chiropractic under
33     Title 58, Chapter 73, Chiropractic Physician Practice Act.
34          (4) "Clinical social worker" means a person licensed to practice as a clinical social
35     worker under Section 58-60-205.
36          (5) "Commissioner" means the commissioner of insurance as provided in Section
37     31A-2-102.
38          (6) "Dental hygienist" means a person licensed to engage in the practice of dental
39     hygiene as defined in Section 58-69-102.
40          (7) "Dental care provider" means any person, partnership, association, corporation, or
41     other facility or institution who causes to be rendered or who renders dental care or
42     professional services as a dentist, dental hygienist, or other person rendering similar care and
43     services relating to or arising out of the practice of dentistry or the practice of dental hygiene,
44     and the officers, employees, or agents of any of the above acting in the course and scope of
45     their employment.
46          [(7)] (8) "Dentist" means a person licensed to engage in the practice of dentistry as
47     defined in Section 58-69-102.
48          [(8)] (9) "Division" means the Division of Occupational and Professional Licensing
49     created in Section 58-1-103.
50          [(9)] (10) "Future damages" includes a judgment creditor's damages for future medical
51     treatment, care or custody, loss of future earnings, loss of bodily function, or future pain and
52     suffering.
53          [(10)] (11) "Health care" means any act or treatment performed or furnished, or which
54     should have been performed or furnished, by any health care provider for, to, or on behalf of a
55     patient during the patient's medical care, treatment, or confinement.
56          [(11)] (12) "Health care facility" means general acute hospitals, specialty hospitals,
57     home health agencies, hospices, nursing care facilities, assisted living facilities, birthing
58     centers, ambulatory surgical facilities, small health care facilities, health care facilities owned

59     or operated by health maintenance organizations, and end stage renal disease facilities.
60          [(12)] (13) "Health care provider" includes any person, partnership, association,
61     corporation, or other facility or institution who causes to be rendered or who renders health
62     care or professional services as a hospital, health care facility, physician, physician assistant,
63     registered nurse, licensed practical nurse, nurse-midwife, licensed direct-entry midwife, dentist,
64     dental hygienist, optometrist, clinical laboratory technologist, pharmacist, physical therapist,
65     physical therapist assistant, podiatric physician, psychologist, chiropractic physician,
66     naturopathic physician, osteopathic physician, osteopathic physician and surgeon, audiologist,
67     speech-language pathologist, clinical social worker, certified social worker, social service
68     worker, marriage and family counselor, practitioner of obstetrics, licensed athletic trainer, or
69     others rendering similar care and services relating to or arising out of the health needs of
70     persons or groups of persons and officers, employees, or agents of any of the above acting in
71     the course and scope of their employment.
72          [(13)] (14) "Hospital" means a public or private institution licensed under Title 26,
73     Chapter 21, Health Care Facility Licensing and Inspection Act.
74          [(14)] (15) "Licensed athletic trainer" means a person licensed under Title 58, Chapter
75     40a, Athletic Trainer Licensing Act.
76          [(15)] (16) "Licensed direct-entry midwife" means a person licensed under the
77     Direct-entry Midwife Act to engage in the practice of direct-entry midwifery as defined in
78     Section 58-77-102.
79          [(16)] (17) "Licensed practical nurse" means a person licensed to practice as a licensed
80     practical nurse as provided in Section 58-31b-301.
81          [(17)] (18) "Malpractice action against a health care provider" means any action against
82     a health care provider, whether in contract, tort, breach of warranty, wrongful death, or
83     otherwise, based upon alleged personal injuries relating to or arising out of health care rendered
84     or which should have been rendered by the health care provider.
85          [(18)] (19) "Marriage and family therapist" means a person licensed to practice as a
86     marriage therapist or family therapist under Sections 58-60-305 and 58-60-405.
87          [(19)] (20) "Naturopathic physician" means a person licensed to engage in the practice
88     of naturopathic medicine as defined in Section 58-71-102.
89          [(20)] (21) "Nurse-midwife" means a person licensed to engage in practice as a nurse

90     midwife under Section 58-44a-301.
91          [(21)] (22) "Optometrist" means a person licensed to practice optometry under Title 58,
92     Chapter 16a, Utah Optometry Practice Act.
93          [(22)] (23) "Osteopathic physician" means a person licensed to practice osteopathy
94     under Title 58, Chapter 68, Utah Osteopathic Medical Practice Act.
95          [(23)] (24) "Patient" means a person who is under the care of a health care provider,
96     under a contract, express or implied.
97          [(24)] (25) "Periodic payments" means the payment of money or delivery of other
98     property to a judgment creditor at intervals ordered by the court.
99          [(25)] (26) "Pharmacist" means a person licensed to practice pharmacy as provided in
100     Section 58-17b-301.
101          [(26)] (27) "Physical therapist" means a person licensed to practice physical therapy
102     under Title 58, Chapter 24b, Physical Therapy Practice Act.
103          [(27)] (28) "Physical therapist assistant" means a person licensed to practice physical
104     therapy, within the scope of a physical therapist assistant license, under Title 58, Chapter 24b,
105     Physical Therapy Practice Act.
106          [(28)] (29) "Physician" means a person licensed to practice medicine and surgery under
107     Title 58, Chapter 67, Utah Medical Practice Act.
108          [(29)] (30) "Physician assistant" means a person licensed to practice as a physician
109     assistant under Title 58, Chapter 70a, Utah Physician Assistant Act.
110          [(30)] (31) "Podiatric physician" means a person licensed to practice podiatry under
111     Title 58, Chapter 5a, Podiatric Physician Licensing Act.
112          [(31)] (32) "Practitioner of obstetrics" means a person licensed to practice as a
113     physician in this state under Title 58, Chapter 67, Utah Medical Practice Act, or under Title 58,
114     Chapter 68, Utah Osteopathic Medical Practice Act.
115          [(32)] (33) "Psychologist" means a person licensed under Title 58, Chapter 61,
116     Psychologist Licensing Act, to engage in the practice of psychology as defined in Section
117     58-61-102.
118          [(33)] (34) "Registered nurse" means a person licensed to practice professional nursing
119     as provided in Section 58-31b-301.
120          [(34)] (35) "Relative" means a patient's spouse, parent, grandparent, stepfather,

121     stepmother, child, grandchild, brother, sister, half brother, half sister, or spouse's parents. The
122     term includes relationships that are created as a result of adoption.
123          [(35)] (36) "Representative" means the spouse, parent, guardian, trustee,
124     attorney-in-fact, person designated to make decisions on behalf of a patient under a medical
125     power of attorney, or other legal agent of the patient.
126          [(36)] (37) "Social service worker" means a person licensed to practice as a social
127     service worker under Section 58-60-205.
128          [(37)] (38) "Speech-language pathologist" means a person licensed to practice
129     speech-language pathology under Title 58, Chapter 41, Speech-Language Pathology and
130     Audiology Licensing Act.
131          [(38)] (39) "Tort" means any legal wrong, breach of duty, or negligent or unlawful act
132     or omission proximately causing injury or damage to another.
133          [(39)] (40) "Unanticipated outcome" means the outcome of a medical treatment or
134     procedure that differs from an expected result.
135          Section 2. Section 78B-3-412 is amended to read:
136          78B-3-412. Notice of intent to commence action.
137          (1) A malpractice action against a health care provider may not be initiated unless and
138     until the plaintiff:
139          (a) gives the prospective defendant or his executor or successor, at least 90 days' prior
140     notice of intent to commence an action; and
141          (b) except for an action against a dentist or a dental care provider, the plaintiff receives
142     a certificate of compliance from the division in accordance with Section 78B-3-418.
143          (2) The notice shall include:
144          (a) a general statement of the nature of the claim;
145          (b) the persons involved;
146          (c) the date, time, and place of the occurrence;
147          (d) the circumstances surrounding the claim;
148          (e) specific allegations of misconduct on the part of the prospective defendant; and
149          (f) the nature of the alleged injuries and other damages sustained.
150          (3) Notice may be in letter or affidavit form executed by the plaintiff or his attorney.
151     Service shall be accomplished by persons authorized and in the manner prescribed by the Utah

152     Rules of Civil Procedure for the service of the summons and complaint in a civil action or by
153     certified mail, return receipt requested, in which case notice shall be considered served on the
154     date of mailing.
155          (4) Notice shall be served within the time allowed for commencing a malpractice
156     action against a health care provider. If the notice is served less than 90 days prior to the
157     expiration of the applicable time period, the time for commencing the malpractice action
158     against the health care provider shall be extended to 120 days from the date of service of
159     notice.
160          (5) This section shall, for purposes of determining its retroactivity, not be construed as
161     relating to the limitation on the time for commencing any action, and shall apply only to causes
162     of action arising on or after April 1, 1976. This section shall not apply to third party actions,
163     counterclaims or crossclaims against a health care provider.
164          Section 3. Section 78B-3-416 is amended to read:
165          78B-3-416. Division to provide panel -- Exemption -- Procedures -- Statute of
166     limitations tolled -- Composition of panel -- Expenses -- Division authorized to set license
167     fees.
168          (1) (a) The division shall provide a hearing panel in alleged medical liability cases
169     against health care providers as defined in Section 78B-3-403, except dentists or dental care
170     providers.
171          (b) (i) The division shall establish procedures for prelitigation consideration of medical
172     liability claims for damages arising out of the provision of or alleged failure to provide health
173     care.
174          (ii) The division may establish rules necessary to administer the process and
175     procedures related to prelitigation hearings and the conduct of prelitigation hearings in
176     accordance with Sections 78B-3-416 through 78B-3-420.
177          (c) The proceedings are informal, nonbinding, and are not subject to Title 63G, Chapter
178     4, Administrative Procedures Act, but are compulsory as a condition precedent to commencing
179     litigation.
180          (d) Proceedings conducted under authority of this section are confidential, privileged,
181     and immune from civil process.
182          (e) The division may not provide more than one hearing panel for each alleged medical

183     liability case against a health care provider.
184          (2) (a) The party initiating a medical liability action shall file a request for prelitigation
185     panel review with the division within 60 days after the service of a statutory notice of intent to
186     commence action under Section 78B-3-412.
187          (b) The request shall include a copy of the notice of intent to commence action. The
188     request shall be mailed to all health care providers named in the notice and request.
189          (3) (a) The filing of a request for prelitigation panel review under this section tolls the
190     applicable statute of limitations until the later of:
191          (i) 60 days following the division's issuance of:
192          (A) an opinion by the prelitigation panel; or
193          (B) a certificate of compliance under Section 78B-3-418; or
194          (ii) the expiration of the time for holding a hearing under Subsection (3)(b)(ii).
195          (b) The division shall:
196          (i) send any opinion issued by the panel to all parties by regular mail; and
197          (ii) complete a prelitigation hearing under this section within:
198          (A) 180 days after the filing of the request for prelitigation panel review; or
199          (B) any longer period as agreed upon in writing by all parties to the review.
200          (c) If the prelitigation hearing has not been completed within the time limits
201     established in Subsection (3)(b)(ii), the claimant shall:
202          (i) file an affidavit of merit under the provisions of Section 78B-3-423; or
203          (ii) file an affidavit with the division within 180 days of the request for pre-litigation
204     review, in accordance with Subsection (3)(d), alleging that the respondent has failed to
205     reasonably cooperate in scheduling the hearing.
206          (d) If the claimant files an affidavit under Subsection (3)(c)(ii):
207          (i) within 15 days of the filing of the affidavit under Subsection (3)(c)(ii), the division
208     shall determine whether either the respondent or the claimant failed to reasonably cooperate in
209     the scheduling of a pre-litigation hearing; and
210          (ii) (A) if the determination is that the respondent failed to reasonably cooperate in the
211     scheduling of a hearing, and the claimant did not fail to reasonably cooperate, the division
212     shall, issue a certificate of compliance for the claimant in accordance with Section 78B-3-418;
213     or

214          (B) if the division makes a determination other than the determination in Subsection
215     (3)(d)(ii)(A), the claimant shall file an affidavit of merit in accordance with Section 78B-3-423,
216     within 30 days of the determination of the division under this Subsection (3).
217          (e) (i) The claimant and any respondent may agree by written stipulation that no useful
218     purpose would be served by convening a prelitigation panel under this section.
219          (ii) When the stipulation is filed with the division, the division shall within 10 days
220     after receipt issue a certificate of compliance under Section 78B-3-418, as it concerns the
221     stipulating respondent, and stating that the claimant has complied with all conditions precedent
222     to the commencement of litigation regarding the claim.
223          (4) The division shall provide for and appoint an appropriate panel or panels to hear
224     complaints of medical liability and damages, made by or on behalf of any patient who is an
225     alleged victim of medical liability. The panels are composed of:
226          (a) one member who is a resident lawyer currently licensed and in good standing to
227     practice law in this state and who shall serve as chairman of the panel, who is appointed by the
228     division from among qualified individuals who have registered with the division indicating a
229     willingness to serve as panel members, and a willingness to comply with the rules of
230     professional conduct governing lawyers in the state, and who has completed division training
231     regarding conduct of panel hearings;
232          (b) (i) one or more members who are licensed health care providers listed under
233     Section 78B-3-403, who are practicing and knowledgeable in the same specialty as the
234     proposed defendant, and who are appointed by the division in accordance with Subsection (5);
235     or
236          (ii) in claims against only a health care facility or the facility's employees, one member
237     who is an individual currently serving in a health care facility administration position directly
238     related to health care facility operations or conduct that includes responsibility for the area of
239     practice that is the subject of the liability claim, and who is appointed by the division; and
240          (c) a lay panelist who is not a lawyer, doctor, hospital employee, or other health care
241     provider, and who is a responsible citizen of the state, selected and appointed by the division
242     from among individuals who have completed division training with respect to panel hearings.
243          (5) (a) Each person listed as a health care provider in Section 78B-3-403 and practicing
244     under a license issued by the state, is obligated as a condition of holding that license to

245     participate as a member of a medical liability prelitigation panel at reasonable times, places,
246     and intervals, upon issuance, with advance notice given in a reasonable time frame, by the
247     division of an Order to Participate as a Medical Liability Prelitigation Panel Member.
248          (b) A licensee may be excused from appearance and participation as a panel member
249     upon the division finding participation by the licensee will create an unreasonable burden or
250     hardship upon the licensee.
251          (c) A licensee whom the division finds failed to appear and participate as a panel
252     member when so ordered, without adequate explanation or justification and without being
253     excused for cause by the division, may be assessed an administrative fine not to exceed $5,000.
254          (d) A licensee whom the division finds intentionally or repeatedly failed to appear and
255     participate as a panel member when so ordered, without adequate explanation or justification
256     and without being excused for cause by the division, may be assessed an administrative fine not
257     to exceed $5,000, and is guilty of unprofessional conduct.
258          (e) All fines collected under Subsections (5)(c) and (d) shall be deposited in the
259     Physicians Education Fund created in Section 58-67a-1.
260          (f) The director of the division may collect a fine that is not paid by:
261          (i) referring the matter to a collection agency; or
262          (ii) bringing an action in the district court of the county where the person against whom
263     the penalty is imposed resides or in the county where the office of the director is located.
264          (g) A county attorney or the attorney general of the state shall provide legal assistance
265     and advice to the director in an action to collect a fine.
266          (h) A court shall award reasonable attorney fees and costs to the prevailing party in an
267     action brought by the division to collect a fine.
268          (6) Each person selected as a panel member shall certify, under oath, that he has no
269     bias or conflict of interest with respect to any matter under consideration.
270          (7) A member of the prelitigation hearing panel may not receive compensation or
271     benefits for the member's service, but may receive per diem and travel expenses in accordance
272     with:
273          (a) Section 63A-3-106;
274          (b) Section 63A-3-107; and
275          (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and

276     63A-3-107.
277          (8) (a) In addition to the actual cost of administering the licensure of health care
278     providers, the division may set license fees of health care providers within the limits
279     established by law equal to their proportionate costs of administering prelitigation panels.
280          (b) The claimant bears none of the costs of administering the prelitigation panel except
281     under Section 78B-3-420.