Understanding Utah’s Restrictive Medical Malpractice LawsRequest Free Consultation
It would surprise most people to learn that the third leading cause of death in the United States is medical error. Most people don’t know this because medical error is not listed on death certificates, but according to a John Hopkins study, your chance of dying in the United States due to medical malpractice is one in ten. What is more, their study found that over 21 percent of patients report experience with medical errors, which means nearly one in four patients will have an injury due to medical mistake in their lifetime. These injuries from malpractice lead to many patients filing claims against physicians or medical providers, called medical malpractice.
What Exactly is Medical Malpractice?
Medical malpractice occurs when negligence is committed by a health care provider such as a doctor, dentist, or nurse, in which the care provided to a patient falls below the generally accepted standards of care which leads to unexpected injury, disability or even death to the patient. Examples of medical malpractice include, but are not limited to, performing cosmetic surgery in a manner that results in disfigurement or other avoidable complications, leaving medical instruments in the body of a patient after a surgery, performing surgery on the wrong area of the body, performing a surgical procedure on the wrong patient, or treating a patient or performing surgery in a way that results in the loss of use of a body part.
When malpractice occurs, the victim (called a Plaintiff once a lawsuit is filed) must prove 1) a doctor-patient relationship existed, 2) that their medical provider failed to meet the appropriate standard of care, 3) that this failure caused the victim’s injuries, and 4) that those injuries resulted in damages to the victim. These damages can include economic and noneconomic damages, including lost earning capacity, mental anguish, rehabilitation, pain and suffering, and lost income. Although this may seem simple enough to show for a victim in a medical malpractice action, Utah’s malpractice laws have made this process very restrictive and complex to navigate.
Physicians, medical professionals, and the insurance companies don’t like having to compensate victims for medical malpractice and have successfully lobbied legislatures across the country to impose damages caps, and Utah is no exception. In fact, in 1996, Utah passed its own damages cap, but went even further by creating a restrictive and complex regulatory malpractice statute that severely limited malpractice patient rights.
The Utah Health Care Malpractice Act
That statute is the overly restrictive Utah Health Care Malpractice Act (See Utah Code § 78B-3-401 et al.) The Utah legislature passed this under the guise that it would help Utah’s rising medical costs lower for patients. However, since 1996 this act has never been shown to have accomplished any cost savings to Utah patients, or to doctor malpractice premiums, but has instead shielded doctors and medical providers from liability. It has also led to many patient malpractice claims being dismissed on procedural technicalities resulting in enormous loss to malpractice victims.
As a result of this restrictive statute, victims of malpractice in Utah have a nearly impossible web of complex regulation to navigate. Even with an attorney, navigating these regulations is a time sensitive and difficult process. These restrictive regulations include a shorter statute of limitations, a damages cap, and very complex pre-litigation process.
A Shorter Statute of Limitations
One way in which Utah has made the malpractice process restrictive is the malpractice statute of limitation. Utah normally allows a four-year statute of limitations for standard injury cases, like an auto accident claim, but unreasonably limits complex medical malpractice claims to two (2) years after the victim patient discovers their injury, and there is a hardline four-year limit from the date of the malpractice to file a claim (See Utah Code § 78B-3-404(1). The two-year statute of limitations also applies to medical malpractice wrongful death cases, even when non-medical malpractice wrongful death cases normally have four years. If this seems counter-intuitive to have a shorter statute of limitations for complex cases than standard cases, it is because it is!
What is more alarming is Utah is even more restrictive when a doctor leaves a foreign object in a patient’s body, or a doctor fraudulently conceals their medical misconduct. See Utah Code § 78B-3-404(2)(a). In these situations, the statute of limitations to limited to just one year. Yes, you heard that right, when a doctor frequently conceals their medical misconduct or leaves something inside you, the time to file an action is shortened even more than the already shortened standard medical malpractice case.
As an aside, the Malpractice Act also has a provision that if the hospital or medical provider is considered a government entity, like the University of Utah hospital, or any medical professionals who teach there, the statute of limitations for the medical malpractice suit changes to one year because of the governmental immunity’s one year statute of limitation. See Utah Code § 78B-4-415.
A Limited Damages Cap
Utah also has a very restrictive noneconomic damages cap in medical malpractice cases, while economic damages for medical expenses and loss of income are not capped, non-economic damages for pain and suffering, loss of consortium, and loss of use are capped at $450,000. While it is easy to understand what pain and suffering or loss of use means, loss of consortium is when a spouse or family member makes a claim for the permanent ramifications of the injury, like marital strains, loss of companionship, inability to do activities together, sexual constraints, or inability to have children. While $450,000 might seem like a lot of money to most people and small cases, to the victims of a catastrophic injuries and their families, $450,000 over the course of the rest of their entire life provides very little recourse, especially when a victim is suffering from paralysis, brain injuries, disfigurement, and/or permanent disabilities.
Complex Pre-Litigation Notice Requirement
Utah also has one of the most restrictive pre-litigation processes in the entire United States. For example, Utah’s notice provision requires a malpractice victim to give the medical provider who harmed them at least ninety (90) days advanced notice the victim is commencing a malpractice action. See Utah Code § 78B-4-412. This notice has six (6) separate and distinct requirements that the notice must include. There is no other area of personal injury where a victim is required to give the at-fault party advanced notice of the filing of a lawsuit. Instead, this complex notice requirement is merely another unnecessary requirement for victims of malpractice to complete or risk their claim being dismissed on a procedural hurtle.
The Unnecessary Pre-Litigation Panel
In Utah, malpractice victims are also required to navigate a complex pre-litigation panel, which consists of presenting a patient’s claim to a panel of a of four, which includes doctors from the same organization the patient is suing, normally Intermountain Health Care (IHC). Aside from other issues presented below about the panel, the fact that the panel includes a doctor from the same corporation as the at-fault doctor is outrageous. A member of the defendant’s company would never be allowed to sit on a jury, but this is perfectly acceptable in the pre-litigation panel.
What is more, the entire pre-litigation panel requirement is an enormous waste of time and resources because the pre-litigation panel’s findings are informal, non-binding, and confidential. How irrational is it that in Utah you are required to present a patient’s malpractice claim to a panel that normally includes a doctor from the same hospital corporation, and that panel’s finding is non-binding on whether you can file your lawsuit. Instead, this requirement merely stands as a procedural barrier and an additional method to discourage victims of malpractice from pursuing their suit against the physician or medical provider.
The 2010 Pre-Litigation Panel Amendment
The 2010 changes made to the Utah Health Care Malpractice Act by the legislature attempted to make the pre-litigation panel’s findings binding on whether a malpractice victim could proceed with a lawsuit. Under the 2010 amendment, if the panel determined that a malpractice suit was without merit, a patient was required to hire an expert who would sign an affidavit attesting to the merit of the malpractice case. However, even if the malpractice victim found a doctor to sign an affidavit attesting to the merits of the claim, the panel could still determine that the case was without merit, and the victim could not proceed. These amendments resulted in many valid and meritorious malpractice claims being dismissed by the pre-litigation panel.
However, in 2019 when the Utah Supreme Court finally overturned the requirement that the panel find the claim meritorious as unconstitutional. However, the Utah Supreme Court did not go end the unnecessary and non-binding pre-litigation panel requirement.
As you can see, the restrictive Utah Health Care Malpractice Act has made it very difficult for victims of malpractice in Utah to file claims and recover for their injuries. However, there is light at the end of the tunnel. Our attorneys at We Win Injury Law stay up to date on the complexities and changes required to preserve and file your claim for malpractice. On top of that, it helps that we win! If you have any questions concerning what to do after a medical malpractice case, or what option are available to you, contact us immediately to have your questions answered.