Utah Medical Malpractice Laws

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in Utah?

Medical malpractice is a specific type of professional negligence by a healthcare provider.  In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice.  When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

According to § 78B-3-403(17) of the Utah Code Annotated (“UCA”), a medical malpractice action against a healthcare providers “means any action against a health care provider, whether in contract, tort, breach of warranty, wrongful death, or otherwise, based upon alleged personal injuries relating to or arising out of health care rendered or which should have been rendered by the health care provider.”

The term ‘health care provider’ means:

any person, partnership, association, corporation, or other facility or institution who causes to be rendered or who renders health care or professional services as a hospital, health care facility, physician, registered nurse, licensed practical nurse, nurse-midwife, licensed direct-entry midwife, dentist, dental hygienist, optometrist, clinical laboratory technologist, pharmacist, physical therapist, physical therapist assistant, podiatric physician, psychologist, chiropractic physician, naturopathic physician, osteopathic physician, osteopathic physician and surgeon, audiologist, speech-language pathologist, clinical social worker, certified social worker, social service worker, marriage and family counselor, practitioner of obstetrics, licensed athletic trainer, or others rendering similar care and services relating to or arising out of the health needs of persons or groups of persons and officers, employees, or agents of any of the above acting in the course and scope of their employment.  UCA § 78B-3-403(12).

Required Elements of a Medical Malpractice Claim in Utah

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Utah law.  Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation.  Some degree of risk is inherent in most medical procedures.  The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment.  The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment.

While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.  Utah medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury.  The negligence must be the actual cause in fact of the patient’s injury.  The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior.  That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Basic Elements

The basic elements of a compensable medical malpractice claim that must all be proven by the plaintiff are as follows.

1. Standard of care—applicable standard of care recognized of physicians under similar circumstance practicing in the same field or specialty, e., duty;
2. Breach—the applicable standard of care was breached;
3. Causation—the injury to the plaintiff was proximately caused by the defendant’s negligence; and
4. Damages—the plaintiff suffered damages as a result of defendant’s breach of duty. Dalley v. Utah Valley Regional Medical Center, 791 P.2d 193, 195 (Utah 1990).

Under Utah law, the general rule is that expert witness testimony is required to prove a medical malpractice case.  Id.  The Utah Supreme Court instructed: “To establish the standard of care required of a physician in a particular, breach of that standard, and proximate cause, the plaintiff is generally required to produce an expert witness who is acquainted with the standards of care in the same or a similar field as the defendant doctor.”  Id. at 195-196.

The Utah Supreme Court described the standard of care and breach thereof as follows:

In malpractice actions generally the physician is held to the standard of skill employed by his contemporaries in the same or similar communities. Therefore, before the plaintiff can prevail in a medical malpractice action, he must establish both the standard of care required of the defendant as a practicing physician in the community and the defendant’s failure to employ that standard.

In the majority of medical malpractice cases the plaintiff must introduce expert testimony to establish this standard of care. Expert testimony is required because the nature of the profession removes the particularities of its practice from the knowledge and understanding of the average citizen….

Concomitant with the establishment of the community standard is the plaintiff’s proof that the defendant failed to exercise the level of skill this standard requires.  Nixdorf v. Hicken, 612 P.2d 348, 351-352 (Utah 1980).

The element of proximate cause must also generally be established through expert witness testimony.  Butterfield v. Okubo, 831 P.2d 97, 102 (Utah 1992).  The Utah Supreme Court explained that “[p]roximate cause is a factual issue that generally cannot be resolved as a matter of law.”  Id. at 106.   According to the Supreme Court, the “standard definition of proximate cause is that cause which, in natural and continuous sequence, (unbroken by an efficient intervening cause), produces the injury and without which the result would not have occurred.  It is the efficient cause—the one that necessarily sets in operation the factors that accomplish the injury.” [internal quotation marks omitted] Mitchell v. Pearson Enterprises, 697 P.2d 240, 245-246 (Utah 1985).

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Utah

In general, medical malpractice claims in Utah are subject to a two-year statute of limitations contained in UCA § 78B-3-404(1).  The statute states:

A malpractice action against a health care provider shall be commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs, but not to exceed four years after the date of the alleged act, omission, neglect, or occurrence.

A plaintiff must commence a medical malpractice action within two years of the date he or she discovered or had reason to discover the injury.  The standard statute of limitations governing medical malpractice claims actually incorporates the Discovery Rule (see next Subsection for discussion).

It is often the case that a single day is the difference between whether a plaintiff may commence an action or is time-barred because the limitations period has expired.  Miscalculating when the last day of the limitations period is can literally result in an injured patient, even with a meritorious claim, being denied the chance at any recovery.  As such, it is critical to understand how time is computed under Utah law in calculating the exact date the applicable limitations period ends.  Rule 6 of the Utah Rules of Civil Procedure sets forth in great detail how time is calculated under Utah law, e.g., how weekends are treated, which holidays are counted, etc.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule.  In general, the Discovery Rule is an exception to the standard statute of limitations.  It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision.  The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Utah

Utah recognizes the Discovery Rule for medical malpractice claims.  In fact, it actually serves as the standard statute of limitations governing medical malpractice claims in UCA § 78B-3-404(1).  It states:

A malpractice action against a health care provider shall be commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs, but not to exceed four years after the date of the alleged act, omission, neglect, or occurrence.

The statute does not answer the question of what constitutes discovery of the injury for purposes of triggering the running of the two-year limitations period under the Discovery Rule.  This is a critical question because the date the injury is deemed to have been discovered triggers the running of the two-year statute of limitations.  There are two possibilities: (1) when the injury is discovered—injury only or (2) when the injury is discovered together with its cause—injury and wrongful conduct of another.  The Utah Supreme Court held in favor of the latter possibility as the triggering event for the running of the three-year Discovery Rule limitations period.  Foil v. Ballinger, 601 P.2d 144, 147 (Utah 1979).  In Foil, the Supreme Court explained:

Because of the nature of malpractice actions, and based on prior Utah law, we hold that the statute begins to run when an injured person knows or should know that he has suffered a legal injury [knowledge of injury and casual relationship with alleged negligence]. We base this holding on several grounds. In the health care field it is typically the case that there often is a great disparity in the knowledge of those who provide health care services and those who receive the services with respect to expected and unexpected side effects of a given procedure, as well as the nature, degree, and extent of expected after effects. While the recipient may be aware of a disability or dysfunction, there may be, to the untutored understanding of the average layman, no apparent connection between the treatment provided by a physician and the injury suffered. Even if there is, it may be passed off as an unavoidable side effect or a side effect that will pass with time. Indeed, common experience teaches that one often suffers pain and other physical difficulties without knowing or suspecting the true cause, and may, as often happens, ascribe a totally erroneous cause to the manifestations. Even those who are trained in medical science often require the additional expertise of one possessing specialty training to diagnose properly the cause of certain ailments. A number of medical difficulties can readily be attributed by a layman to causes that are known or should be known. But when injuries are suffered that have been caused by an unknown act of negligence by an expert, the law ought not to be construed to destroy a right of action before a person even becomes aware of the existence of that right.

The Supreme Court also explained why it choose not to establish a rule that discovery of the injury alone triggers the running of the two-year limitations period.  It reasoned that doing so would encourage “a person who experiences an injury, dysfunction or ailment, and has no knowledge of it cause, to file a lawsuit against a health care provider to prevent a statute of limitations from running is not consistent with the unarguably sound proposition that unfounded claims should be strongly discouraged.”  Id. at 148.

It is a question of fact for the jury to determine “when a plaintiff acting with reasonable diligence discovered or should have discovered” the legal injury.  Daniels v. Gamma West Brachytherapy, LLC, 221 P.3d 256, 265 (Utah 2009).  When a plaintiff has undergone multiple medical procedures or treatments and subsequently discovers an injury, the statute of limitations begins to run when the plaintiff discovers or has reason to discover which specific procedure or treatment is the likely cause in fact of the injury.  Id. at 266.  The Utah Supreme Court instructed:

Thus, the statute of limitations begins when exercising such diligence a patient should have discovered his injury and its possible negligent cause. Whether and when a patient should have discovered an injury and its cause is a fact-intensive question that requires a jury to determine, given the information available, whether the actions taken in response to an injury and the efforts extended to discover its cause were adequate. The jury cannot undertake such a fact-specific inquiry without being informed as to which event it is evaluating for whether the plaintiff was aware or should have been aware of what was the negligent cause of his injury.  Id.

Final Thoughts

The application of Utah’s medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven.  The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Utah medical malpractice attorney.  This is especially true when the statute of repose is also implicated (see next Section of this article).  In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact an Utah attorney who specializes in medical malpractice law at the earliest possible opportunity.

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations.  Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed.  If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them.  The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes.  A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued.  In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury.  The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued.  Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists.  A statute of repose serves as an absolute bar to recovery.  Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations.  The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose.  In fact, even many practicing lawyers do not fully appreciate the critical differences between the two.  This is likely due to the fact that statutes of repose are relatively rare.  Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in Utah

Utah has a four-year statute of repose applicable to medical malpractice claims that is contained in UCA § 78B-3-404(1).  It provides that the time in which a medical malpractice claim may not be commenced more than “four years after the date of the alleged act, omission, neglect, or occurrence.”  Id.  Notice the event that triggers the running of this four-year limitations period is the date of the medical treatment.  Accordingly, even if the injury was not discovered within four years of the date of the alleged negligence, the statute of repose bars a claim from ever being brought after four years have passed.

Under the statute, there are only two exceptions to the four-year statute of repose. UCA § 78B-3-404(2).  First, the four-year statute of repose does not bar “an action where the allegation against the health care provider is that a foreign object has been wrongfully left within a patient’s body….” UCA § 78B-3-404(2)(a).  In such cases, “the claim shall be barred unless commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered, the existence of the foreign object wrongfully left in the patient’s body, whichever first occurs….”  Id.

Additionally, the four-year statute of repose does not bar “an action where it is alleged that a patient has been prevented from discovering misconduct on the part of a health care provider because that health care provider has affirmatively acted to fraudulently conceal the alleged misconduct….” UCA § 78B-3-404(2)(b).  In such cases, “the claim shall be barred unless commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence, should have discovered the fraudulent concealment, whichever first occurs.”  Id.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Utah

Claims against a governmental entity are waived to the extent provided for in the Governmental Immunity Act of Utah, UCA § 63G-7-101 et seq.

The term ‘governmental entity’ includes the state and its political subdivisions.  UCA § 63G-7-102(4).  The term ‘political subdivision’ includes “any county, city, town, school district, community reinvestment agency, special improvement or taxing district, local district, special service district … or other governmental subdivision or public corporation.” UCA § 63G-7-102(8).  The term ‘state’ includes “the state of Utah, and includes each office, department, division, agency, authority, commission, board, institution, hospital, college, university, Children’s Justice Center, or other instrumentality of the state.” UCA § 63G-7-102(10).

Sovereign immunity is waived for medical malpractice claims. UCA § 63G-7-301(i) provides that immunity is waived with respect to “any injury proximately caused by a negligent act or omission of an employee committed within the scope of employment.”

According to UCA § 63G-7-401(1), “a claim arises when the statute of limitations that would apply if the claim were against a private person begins to run.”  A person having a claim against a government entity must file a written notice of claim with the entity before commencing an action in court. UCA § 63G-7-401(2).  The notice must include: (1) a brief statement of the facts, (2) the nature of the claim asserted, (3) the damages incurred by the claimant so far as they are known, and (4) if the claim is being pursued against a governmental employee individually, the name of the employee. UCA § 63G-7-401(3).

The notice must be filed “within one year after the claim arises….”  UCA § 63G-7-402.  Within 60 days of filing the notice of claim, the governmental entity or its insurance carrier will inform the claimant in writing whether the claim has been approved or denied. UCA § 63G-7-403(1).  If the claim is denied, the claimant may commence an action in district court against the governmental entity. UCA § 63G-7-403(2).

The maximum judgment amount that can be awarded for one person in any one occurrence is $583,900. UCA § 63G-7-604(1)(a).  Additionally, “there is a $2,000,000 limit to the aggregate amount of individual awards that may be awarded in relation to a single occurrence.” UCA § 63G-7-604(1)(d).  Under UCA § 63G-7-605(2), each even-numbered year, the damage h3are adjusted in accordance with the formulate provided in the statute.

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.  Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation.  As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Act in Utah

Utah has enacted a general Good Samaritan Act that is codified in UCA § 78B-4-501.  The statute provides immunity from civil damages or penalties for individuals who, in good faith, render emergency care or assistance.  The statute reads:

A person who renders emergency care at or near the scene of, or during an emergency, gratuitously and in good faith, is not liable for any civil damages or penalties as a result of any act or omission by the person rendering the emergency care, unless the person is grossly negligent or caused the emergency. As used in th

V. Presuit Requirements

Notice of Intent to Commence Action

A plaintiff with a medical malpractice claim must give the defendant or defendants notice of intent to commence an action against them. UCA § 78B-3-412(1).  The statute states:

A malpractice action against a health care provider may not be initiated unless and until the plaintiff:

(a) gives the prospective defendant or his executor or successor, at least 90 days’ prior notice of intent to commence an action; and

(b) except for an action against a dentist, the plaintiff receives a certificate of compliance from the division in accordance with Section 78B-3-418.

The Notice must include:

(a) a general statement of the nature of the claim;

(b) the person involved;

(c) the date, time, and place of the occurrence;

(d) the circumstances surrounding the claim;

(e) specific allegations of misconduct on the part of the prospective defendant; and

(f) the nature of the alleged injuries and other damages sustained. UCA § 78B-3-412(2).

The Notice can be in letter or affidavit form executed by the plaintiff or his or her attorney. UCA § 78B-3-412(3).  It must be served within the time allowed for filing medical malpractice actions against a healthcare provider.  Id.  If the Notice is served less than 90 days prior to the expiration of the limitations period, the time for commencing the medical malpractice action against the healthcare provider is extended to 120 days from the date of service of notice. UCA § 78B-3-412(4).

Prelitigation Panel

Before a plaintiff is allowed to file an action in court, he or she must also participate in a hearing before a prelitigation panel composed of a lawyer, a licensed healthcare provider, and a lay panelist. UCA § 78B-3-416.  The plaintiff must file a request for prelitigation panel review within 60 days after the service of a statutory notice of intent to commence action.  Id.  The filing of a request for prelitigation panel review tolls the applicable statute of limitations until the later of (1) 60 days following the Division of Occupational and Professional Licensing issuing of an opinion by the prelitigation panel or a certificate of compliance under UCA § 78B-3-418; or (2) the expiration of the time for holding a hearing under Subsection (3)(b)(ii) of § 78B-3-416. UCA § 78B-3-416.

The prelitigation panel is required to issue an opinion and the Division will issue a Certificate of Compliance with the prelitigation requirements under applicable statutes. UCA § 78B-3-418.  A Certificate of Compliance “is proof that the claimant has complied with all conditions precedent” under the statutes to the commencement of litigation as required in Section 78B-3-412(1).  Id.

The prelitigation panel “shall render its opinion in writing not later than 30 days after the end of the proceedings, and determine on the basis of the evidence whether: (i) each claim against each health care provider has merit or has no merit; and (ii) if a claim is meritorious, whether the conduct complained of resulted in harm to the claimant. UCA § 78B-3-418.

Affidavit of Merit

In certain situations enumerated in UCA § 78B-3-423(1), the plaintiff is required to file an Affidavit of Merit in order to receive a Certificate of Compliance, which itself is a condition precedent for filing suit in court. UCA § 78B-3-423.  The primary situation in which an Affidavit of Merit will be required is when the prelitigation panel concludes that the plaintiff’s claim of breach of the applicable standard of care or that the breach was the proximate cause of the complained of injury is without merit.  Id.

The Affidavit of Merit must:

(a) be executed by the claimant’s attorney or the claimant if the claimant is proceeding pro se, stating that the affiant has consulted with and reviewed the facts of the case with a health care provider who has determined after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of a medical liability action; and

(b) include an affidavit signed by a qualified health care provider which states that in the health care provider’s opinion:

(i) there are reasonable grounds to believe that the applicable standard of care was breached;

(ii) the breach was a proximate cause of the injury claimed in the notice of intent to commence action; and

(iii) the reasons for the health care provider’s opinion. UCA § 78B-3-423(2).

VI. Required Elements of a Medical Malpractice Complaint

Basic Elements

In Utah, there is only one recognized form of action, and it is known as a “civil action.”  Rule 2 of the Utah Rules of Civil Procedure.   A medical malpractice action is commenced “(1) by filing a complaint with the court, or (2) by service of a summons together with a copy of the complaint….”  Rule 3.  Rule 3 provides that the “court shall have jurisdiction from the time of filing of the complaint or service of the summons and a copy of the complaint.”

Basically, a complaint is a document that contains a short statement of the facts describing the plaintiff’s claim that entitles the plaintiff to relief and a demand for judgment granting that relief.  A complaint is one of the seven authorized types of pleadings provided for in Rule 7(a).

Rule 8(a) requires that a complaint that states a claim for relief must contain a short and plain: (1) statement of the claim showing that the party is entitled to relief and (2) a demand for judgment for specified relief.  Also, relief “in the alternative or of several different types may be demanded.”  Id.UCA § 78B-3-409 provides: “A dollar amount may not be specified in the prayer of a complaint filed in a malpractice action against a health care provider. The complaint shall merely pray for such damages as are reasonable in the circumstances.”

The complaint “must contain a caption setting forth the name of the court, the title of the action, the file number, if known, the name of the pleading or other paper, and the name, if known, of the judge … to whom the case is assigned.”  Rule 10(a)(1).  In addition, Rule 10(a)(2) provides that in “the complaint, the title of the action must include the names of all the parties….”  The complaint “must state in the top left hand corner of the first page the name, address, email address, telephone number and bar number of the attorney or party filing the paper, and, if filed by an attorney, the party for whom it is filed.” Rule 10(a)(3).  In addition to the complaint, the plaintiff “must also file a completed cover sheet substantially similar in form and content to the cover sheet approved by the Judicial Council.” Rule 10(a)(4).

Statements of claim must be made in number paragraphs. Rule 10(b).  “Each paragraph must be limited as far as practicable to a single set of circumstances….”  Id.  Also, each “claim founded upon a separate transaction or occurrence … must be stated in a separate count … whenever a separation facilitates the clear presentation of the matters set forth.”  Id.

Rule 10(d) states:

All pleadings and other papers, other than exhibits and court-approved forms, must be 8½ inches wide x 11 inches long, on white background, with a top margin of not less than 1½ inches and a right, left and bottom margin of not less than 1 inch. All text or images must be clearly legible, must be double spaced, except for matters customarily single spaced, must be on one side only and must not be smaller than 12-point size.

Rule 10(e) states:

The name of the person signing must be typed or printed under that person’s signature. If a proposed document ready for signature by a court official is electronically filed, the order must not include the official’s signature line and must, at the end of the document, indicate that the signature appears at the top of the first page.

The complaint “must be signed by at least one attorney of record, or, if the party is not represented, by the party.”  Rule 11(a).

Notice Pleading

Utah is a notice pleading state.  Canfield v. Layton City, 122 P.3d 622, 625 (Utah 2005).  The Utah Supreme Court explained as follows:

A plaintiff is required, under our liberal standard of notice pleading, to submit a “short and plain statement … showing that the pleader is entitled to relief” and “a demand for judgment for the relief.”  The plaintiff must only give the defendant “fair notice of the nature and basis or grounds of the claim and a general indication of the type of litigation involved.” [internal citations omitted] Id.

Fact pleading is the other (less common) system of pleading.  For example, Oregon is a fact (or code) pleading state.  Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983).  According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood.  The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought.  This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A).  Id. at 1191-1192.  Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.

The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.

VII. Expert Medical Witnesses

Introduction

The general rule under medical malpractice law holds that expert witnesses are nearly always required.  The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses.  As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization.  Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Who Qualifies as An Expert Medical Witness

The starting point in determining whether a potential expert witness is qualified to provide opinion testimony in a medical malpractice case is Rule 702 of the Utah Rules of Evidence, which states: “a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”  According to Rule 702, a prospective witness can qualify as an expert based on his or her “knowledge, skill, experience, training, or education.”

Under Utah law, trial courts make the determination whether a prospective witness qualifies as an expert competent to provide opinion testimony, and they are given wide latitude in making that determination by the Supreme Court.  State v. Butterfield, 27 P.3d 1133, 1139 (Utah 2001).  The Supreme Court does not mandate that an expert witness necessarily hold the same degree or practice in the same specialty as the defendant against whom the testimony is provided.  Id.  Rather, the determination is based on whether there is an adequate factual basis for the trial court to conclude that the proposed witness is an expert on the specific topic that he or she is providing testimony.  Id.  That a witness is qualified can be established “by reason of experience, skill, knowledge, and education.”  Id.

Admissibility of Expert Testimony

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries.  Simply put, courts must guard against allowing so-called junk science into evidence.  To achieve that objective, most states[1] follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”  Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle.  The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Expert Testimony in Utah

The starting point in determining whether expert witness testimony in a medical malpractice case is admissible is Rule 702 of the Utah Rules of Evidence.  It states, in pertinent part:

(b) Scientific, technical, or other specialized knowledge may serve as the basis for expert testimony only if there is a threshold showing that the principles or methods that are underlying in the testimony

(1) are reliable,

(2) are based upon sufficient facts or data, and

(3) have been reliably applied to the facts.

(c) The threshold showing required by paragraph (b) is satisfied if the underlying principles or methods, including the sufficiency of facts or data and the manner of their application to the facts of the case, are generally accepted by the relevant expert community.

The Utah Supreme Court stated:

We review a trial court’s decision to admit expert testimony for an abuse of discretion and find error only if no reasonable person would take the view the trial court adopted. Thus, our task is not to determine whether the particular type of scientific evidence should always be admitted, or whether the particular scientific analysis represents the best possible test. Instead, we must decide whether the trial court made a permissible choice in exercising its discretion to admit the scientific evidence in this case.  State v. Maestas, 299 P.3d 892, 930 (Utah 2012).

In determining whether to admit expert opinion testimony, the Utah Supreme Court explained that under Rule 702 the trial court must first determine whether the prospective expert witness is qualified and if so then determine whether the scientific, technical, or other specialized knowledge that serves as the basis for the expert’s testimony is reliable.  Eskelson v. Davis Hospital and Medical Center, 242 P.3d 762, 765 (Utah 2010).  In Eskelson, the Court referenced the Advisory Committee Note to Rule 702 for guidance on the admissibility determination.  Id.  The Note instructs:

The amended rule [702 was amended in 2007, which is the current version] embodies several general considerations. First, the rule is intended to be applied to all expert testimony. In this respect, the rule follows federal law as announced in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Next, like its federal counterpart, Utah’s rule assigns to trial judges a “gatekeeper” responsibility to screen out unreliable expert testimony. In performing their gatekeeper function, trial judges should confront proposed expert testimony with rational skepticism. This degree of scrutiny is not so rigorous as to be satisfied only by scientific or other specialized principles or methods that are free of controversy or that meet any fixed set of criteria fashioned to test reliability. The rational skeptic is receptive to any plausible evidence that may bear on reliability. She is mindful that several principles, methods or techniques may be suitably reliable to merit admission into evidence for consideration by the trier of fact. The fields of knowledge which may be drawn upon are not limited merely to the “scientific” and “technical”, but extend to all “specialized” knowledge. Similarly, the expert is viewed, not in a narrow sense, but as a person qualified by “knowledge, skill, experience, training or education”. Finally, the gatekeeping trial judge must take care to direct her skepticism to the particular proposition that the expert testimony is offered to support. The Daubert court characterized this task as focusing on the “work at hand”. The practitioner should equally take care that the proffered expert testimony reliably addresses the “work at hand”, and that the foundation of reliability presented for it reflects that consideration.

Section (c) retains limited features of the traditional Frye test for expert testimony. Generally accepted principles and methods may be admitted based on judicial notice. The nature of the “work at hand” is especially important here. It might be important in some cases for an expert to educate the factfinder about general principles, without attempting to apply these principles to the specific facts of the case. The rule recognizes that an expert on the stand may give a dissertation or exposition of principles relevant to the case, leaving the trier of fact to apply them to the facts. Proposed expert testimony that seeks to set out relevant principles, methods or techniques without offering an opinion about how they should be applied to a particular array of facts will be, in most instances, more eligible for admission under section (c) than case specific opinion testimony. There are, however, scientific or specialized methods or techniques applied at a level of considerable operational detail that have acquired sufficient general acceptance to merit admission under section (c).

The concept of general acceptance as used in section (c) is intended to replace the novel vs. non-novel dichotomy that has served as a central analytical tool in Utah’s Rule 702 jurisprudence. The failure to show general acceptance meriting admission under section (c) does not mean the evidence is inadmissible, only that the threshold showing for reliability under section (b) must be shown by other means.

Section (b) adopts the three general categories of inquiry for expert testimony contained in the federal rule. Unlike the federal rule, however, the Utah rule notes that the proponent of the testimony is required to make only a “threshold” showing. That “threshold” requires only a basic foundational showing of indicia of reliability for the testimony to be admissible, not that the opinion is indisputably correct. When a trial court, applying this amendment, rules that an expert’s testimony is reliable, this does not necessarily mean that contradictory expert testimony is unreliable. The amendment is broad enough to permit testimony that is the product of competing principles or methods in the same field of expertise. Contrary and inconsistent opinions may simultaneously meet the threshold; it is for the factfinder to reconcile – or choose between – the different opinions. As such, this amendment is not intended to provide an excuse for an automatic challenge to the testimony of every expert, and it is not contemplated that evidentiary hearings will be routinely required in order for the trial judge to fulfill his role as a rationally skeptical gatekeeper. In the typical case, admissibility under the rule may be determined based on affidavits, expert reports prepared pursuant to Utah R.Civ.P. 26, deposition testimony and memoranda of counsel.

VIII. Comparative Negligence

Modified Comparative Negligence with 50% Bar Rule

By statute, Utah uses modified comparative negligence with a 50% bar rule.  UCA § 78B-5-818.    The statute provides that a plaintiff’s contributory fault does not bar recovery, stating:

(1) The fault of a person seeking recovery may not alone bar recovery by that person.

(2) A person seeking recovery may recover from any defendant or group of defendants whose fault, combined with the fault of persons immune from suit and nonparties to whom fault is allocated, exceeds the fault of the person seeking recovery….

In general, fault is allocated among the parties to the action in an amount equal to the determined percentage of fault of each party.  UCA § 78B-5-819.  There are special allocation rules when a party who is immune from suit is involved.  Id.  Under UCA § 78B-5-820, “the maximum amount for which a defendant may be liable to any person seeking recovery is that percentage or proportion of the damage equivalent to the percentage or proportion of fault attributed to that defendant.”

Notice that the plaintiff may recover damages so long as his or her proportionate share of fault is not equal to or greater than the defendants and nonparties allocated fault—the 50% bar rule.  If the plaintiff’s percentage share of determined fault is equal to or greater than the total of the defendants and at-fault nonparties (i.e., plaintiff’s contributory fault is determined to be 50% or greater), then the plaintiff is not entitled to any recovery.

For example, assume a plaintiff is determined to be 49% at fault, and the damage award is $100,000.  The maximum amount to which the plaintiff is entitled is $49,000 because each of the defendants is liable only for their respective percentage of fault, the total of which cannot exceed 49% otherwise the 50% bar rule would prevent any recovery by plaintiff.  If the plaintiff were determined to be 50% at fault, he or she would not be entitled to any recovery because Utah imposes the 50% bar rule.

Under contributory negligence (the doctrine that Utah followed prior to implementing the current doctrine of modified comparative fault—Rigtrup v. Strawberry Water Users Association, 563 P.2d 1247, 1249 (Utah 1977)), a plaintiff is completely barred from any recovery if his or her negligent conduct contributed as a legal cause in any degree to the injury.  Contributory negligence is extremely unforgiven.  If the plaintiff’s own negligence contributed to the injury in the slightest degree, i.e., even 1%, he or she cannot recover any damages.  It is for this reason that nearly every state has abandoned it.  Only Alabama, Maryland, North Carolina, and Virginia still permit the use of contributory negligence.

To underscore the point, assume that a plaintiff is 10% at fault for contributing to his or her own injuries with the defendant 90% at fault, and the damage award is $1 million.  Under comparative negligence, the plaintiff will still recover $900,000 ($1 million less 10% or $100,000 attributable to his or her allocated share of fault).  That is the result for under Utah’s current doctrine of modified comparative negligence.  In contrast, under contributory negligence, the plaintiff recovers nothing.  The plaintiff’s 10% allocation of fault serves as a complete bar to recovery.  That is the stark difference between the two doctrines.

Apportionment of Fault with Multiple Defendants

When multiple defendants are involved, there are two different ways in which the degree of fault comparison can be applied.  Each approach can lead to vastly different results.  The individual comparison approach compares the plaintiff’s proportion of fault against each defendant individually, and the plaintiff may recover damages against only the defendants whose individual proportion of fault is greater than the plaintiff’s.  For example, in a scenario where the plaintiff is deemed to be 40% at fault and two defendants are each apportioned 30% of the fault, the plaintiff is barred from any recovery.  Under the individual comparison approach, the plaintiff’s share of fault for the injury is greater than either defendant individually.

On the other hand, the combined comparison approach permits the plaintiff to recover as long as his or her apportioned share of negligence is equal to or less than the combined negligence of all the defendants against whom recovery is sought.  In the above example, the plaintiff would be entitled to recover damages from both defendants since his or her apportioned share of negligence is less than the combined share of the two defendants.  Clearly, there is a stark contrast in the results of the two approaches with plaintiffs obviously favoring the combined comparison approach.

Fortunately for plaintiffs pursuing medical malpractice claims, the Utah Supreme Court announced that the “combined comparison” (or unit rule, as the Court refers to it) approach is the law in Utah.  Jensen v. Intermountain Health Care, Inc., 679 P.2d 903, 910 (Utah 1984).

Under Utah law, the plaintiff in the foregoing example would be entitled to recover damages since the plaintiff’s share of negligence is less than the defendants’ aggregate share on a combined comparison basis (40% versus 60% for the defendants).

IX. Limitation on Noneconomic Damages

In general, Utah law imposes a $450,000 limit on the amount of noneconomic losses to compensate for pain, suffering, and inconvenience that can be recovered in a medical malpractice action for personal injury. UCA § 78B-3-410(1)(d).  The limitation on noneconomic damages applies to a “cause of action arising on or after May 15, 2010.”  Id.

It must be noted that the Utah Supreme Court held that the cap on noneconomic damages does not apply to medical malpractice actions involving wrongful death.  Smith v. United States, 356 P.3d 1249, 1251 (Utah 2015).  In the 2015 case, the Utah Supreme Court determined that the cap on noneconomic damages in section 78B-3-410 violates XVI, Section 5 of the Utah Constitution and held that “the damages cap in section 78B-3-410 of the Malpractice Act is not constitutionally permissible as applied to wrongful-death cases.”  Id. 

X. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases.  That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award.  If there is no recovery, then the attorney does not receive any payment as a legal fee.  Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources.  Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option.  Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive.  Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee.  Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions.  Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Utah

In medical malpractice cases where a contingent fee agreement exists between the plaintiff and attorney, the fee is capped by statute at thirty-three and one third percent (331/3%) of the amount recovered. UCA § 78B-3-411.  The foregoing limitation on attorney fees “applies regardless of whether the recovery is by settlement, arbitration, judgment, or whether appeal is involved.”  Id.

Additionally, there is an important limitation on fees designed to protect all clients of which plaintiffs with a medical malpractice claim should be aware.  In general, attorney fees in medical malpractice cases are subject to the reasonableness standard that governs all fee arrangements in Utah under Rule 1.5 of the Utah Rules of Professional Conduct, which states:

A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount for expenses.  The factors to be considered in determining the reasonableness of a fee include the following:

• the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

• the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

• the fee customarily charged in the locality for similar legal services;

• the amount involved and the results obtained;

• the time limitations imposed by the client or by the circumstances;

• the nature and length of the professional relationship with the client;

• the experience, reputation and ability of the lawyer or lawyers performing the services; and

• whether the fee is fixed or contingent;

Contingent fee arrangements are expressly permitted by Rule 1.5(c), subject to the requirements described therein.  A contingent fee arrangement must be in writing and signed by the client, and it must “state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal….”  Id.  It must also explain what “litigation and other expenses [are] to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated.”  Id.  The agreement must “clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party.”  Id.  Finally, at the end of the case, “the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.”  Id.

Comment 1 to Rule 1.5 clarifies that the fees charged by a lawyer must be “reasonable under the circumstances.”  It also states that the eight factors are not exclusive.  In addition, not every factor will be relevant in each case, according to the Comment.

Comment 3 to Rule 1.5 makes it absolutely clear that contingent fees are subject to the general reasonableness requirement that governs all attorney fees.  It provides:

Contingent fees, like any other fees, are subject to the reasonableness standard of paragraph (a) of this Rule. In determining whether a particular contingent fee is reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer must consider the factors that are relevant under the circumstances. Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage allowable, or may require a lawyer to offer clients an alternative basis for the fee. Applicable law also may apply to situations other than a contingent fee, for example, government regulations regarding fees in certain tax matters.

XI. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit.  This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

Utah is among the states that have enacted an “I’m Sorry” law.  It is contained in UCA § 78B-3-422(2) and is specific to healthcare providers.  The statute shields healthcare providers who communicate statements of apology, sympathy, commiseration, condolence, or compassion to the patient relating to an unanticipated outcome by making such statements inadmissible as evidence of liability.  The statute reads as follows:

In any civil action or arbitration proceeding relating to an unanticipated outcome of medical care, any unsworn statement, affirmation, gesture, or conduct made to the patient by the defendant shall be inadmissible as evidence of an admission against interest or of liability if it:

(a) expresses:

(i) apology, sympathy, commiseration, condolence, or compassion; or

(ii) a general sense of benevolence; or

(b) describes:

(i) the sequences of events relating to the unanticipated outcome of medical

care;

(ii) the significance of events; or

(iii) both.  Id.

It must be noted that the Utah Court of Appeals held that the statute does not shield statements of fault.  Lawrence v. MountainStar Healthcare, 320 P.3d 1037, 1051 (Utah Ct. App. 2014).  After concluding that the statute itself does not definitively answer the question of whether statements of fault are protected, the Court reviewed the legislative history and determined: “Based on the purpose of the statute, the removal of the word ‘fault’ from the bill before passage, and the ambiguous meaning of the term ‘apology’ in this context, we conclude that the Utah Legislature did not intend to exclude statements of fault under section 78B-3-422.”  Id.

For purposes of the statute, the term ‘defendant’ means “the defendant in a malpractice action against a health care provider.” UCA § 78B-3-422(1)(a).

The term ‘health care provider’ includes “an agent of a health care provider.” UCA § 78B-3-422(1)(b).

The term ‘patient’ includes “any person associated with the patient.” UCA § 78B-3-422(1)(c).

Nevertheless, although expressions of apology, sympathy, commiseration, condolence, or compassion may not be used as an admission of liability or otherwise as evidence, experienced medical malpractice lawyers in Utah understand that they can still be useful to potential plaintiffs.  Lawyers point out that receiving such an expression of apology or sympathy may alert the potential plaintiff that an error was made by a healthcare provider.  While the expression itself cannot be used against the healthcare provider in a civil action, it can serve as the trigger for the need to investigate the circumstances surrounding the plaintiff’s injury by contacting an experience medical malpractice lawyer.

XII. Website Disclaimer

This website has been prepared by Medical Malpractice Help for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

The information contained in this website is provided only as general information, which may or may not reflect the most current legal developments. This website occasionally contains links to other web pages. The inclusion of such links, however, does not constitute referrals or endorsements of the linked entities. Newsome | Melton specifically disclaims any responsibility for positions taken by users in their individual cases or for any misunderstanding on the part of users of this website or any linked websites.

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[1] In fact, only Nevada, North Dakota, and Virginia do not follow, in whole or in part, either the Frye or Daubert standard.  For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.