02-13 13:11 H.B. 503
1
Medical Malpractice Modifications
2025 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Katy Hall
Senate Sponsor:
2
3
LONG TITLE
4
General Description:
5
This bill addresses malpractice actions against health care providers.
6
Highlighted Provisions:
7
This bill:
8
▸ with respect to a medical malpractice action:
9
● removes the requirement that a claimant submit an affidavit of merit;
10
● establishes data collection and reporting requirements for the Department of
11
Occupational Licensing and the Administrative Office of the Courts;
12
● addresses the calculation of noneconomic losses;
13
● limits, subject to state constitutional protection, the combined amount to which a
14
claimant is potentially entitled for economic and noneconomic losses;
15
● obligates a plaintiff, in certain circumstances, to pay the reasonable attorney fees and
16
costs incurred by a defendant;
17
● precludes liability from attaching, in certain circumstances, to a medical facility,
18
clinic, or organization;
19
● amends the required mental state a health care provider must have, in order to subject
20
the health care provider to punitive damages; and
21
● amends the process for prelitigation review panels and prelitigation panel reviews; and
22
▸ makes technical changes.
23
Money Appropriated in this Bill:
24
None
25
Other Special Clauses:
26
None
27
Utah Code Sections Affected:
28
AMENDS:
29
78B-3-405, as last amended by Laws of Utah 2023, Chapter 330
30
78B-3-410, as last amended by Laws of Utah 2010, Chapter 97
H.B. 503 H.B. 503 02-13 13:11
31
78B-3-412, as last amended by Laws of Utah 2022, Chapter 356
32
78B-3-416, as last amended by Laws of Utah 2024, Chapter 366
33
78B-3-418, as last amended by Laws of Utah 2022, Chapter 212
34
78B-3-424, as enacted by Laws of Utah 2010, Chapter 97
35
78B-8-201, as last amended by Laws of Utah 2011, Chapter 79
36
ENACTS:
37
78A-2-109.6, Utah Code Annotated 1953
38
78B-3-416.1, Utah Code Annotated 1953
39
78B-3-418.5, Utah Code Annotated 1953
40
REPEALS:
41
78B-3-423, as last amended by Laws of Utah 2022, Chapter 212
42
43
Be it enacted by the Legislature of the state of Utah:
44
Section 1. Section 78A-2-109.6 is enacted to read:
45
78A-2-109.6 . Professional licensing reporting -- Survey and report of
46
malpractice actions against health care providers.
47
The Administrative Office of the Courts shall provide to the Division of Professional
48
Licensing for each case filed alleging, as defined in Section 78B-3-403, a malpractice action
49
against a health care provider:
50
(1) a copy of the initial complaint, including any attachments; and
51
(2) a copy of any dispositive decisions issued.
52
Section 2. Section 78B-3-405 is amended to read:
53
78B-3-405 . Amount of award reduced by amounts of collateral sources available
54
to plaintiff -- No reduction where subrogation right exists -- Collateral sources defined --
55
Procedure to preserve subrogation rights -- Evidence admissible -- Exceptions.
56
(1) In all malpractice actions against health care providers as defined in Section 78B-3-403
57
in which damages are awarded to compensate the plaintiff for losses sustained, the court
58
shall reduce the amount of the award by the total of all amounts paid to the plaintiff
59
from all collateral sources which are available to him. No reduction may be made for
60
collateral sources for which a subrogation right exists as provided in this section nor
61
shall there be a reduction for any collateral payment not included in the award of
62
damages.
63
(2) Upon a finding of liability and an awarding of damages by the trier of fact, the court
64
shall receive evidence concerning the total amounts of collateral sources which have
- 2 - 02-13 13:11 H.B. 503
65
been paid to or for the benefit of the plaintiff or are otherwise available to him. The
66
court shall also take testimony of any amount which has been paid, contributed, or
67
forfeited by, or on behalf of the plaintiff or members of his immediate family to secure
68
his right to any collateral source benefit which he is receiving as a result of his injury,
69
and shall offset any reduction in the award by those amounts. Evidence may not be
70
received and a reduction may not be made with respect to future collateral source
71
benefits except as specified in Subsection (5).
72
(3) For purposes of this section "collateral source" means payments made to or for the
73
benefit of the plaintiff for:
74
(a) medical expenses and disability payments payable under the United States Social
75
Security Act, any federal, state, or local income disability act, or any other public
76
program, except the federal programs which are required by law to seek subrogation;
77
(b) any health, sickness, or income replacement insurance, automobile accident
78
insurance that provides health benefits or income replacement coverage, and any
79
other similar insurance benefits, except life insurance benefits available to the
80
plaintiff, whether purchased by the plaintiff or provided by others;
81
(c) any contract or agreement of any person, group, organization, partnership, or
82
corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or
83
other health care services, except benefits received as gifts, contributions, or
84
assistance made gratuitously; and
85
(d) any contractual or voluntary wage continuation plan provided by employers or any
86
other system intended to provide wages during a period of disability.
87
(4) To preserve subrogation rights for amounts paid or received prior to settlement or
88
judgment, a provider of collateral sources shall, at least 30 days before settlement or trial
89
of the action, serve a written notice upon each health care provider against whom the
90
malpractice action has been asserted. The written notice shall state:
91
(a) the name and address of the provider of collateral sources;
92
(b) the amount of collateral sources paid;
93
(c) the names and addresses of all persons who received payment; and
94
(d) the items and purposes for which payment has been made.
95
(5) Evidence is admissible of government programs that provide payments or benefits
96
available in the future to or for the benefit of the plaintiff to the extent available
97
irrespective of the recipient's ability to pay. Evidence of the likelihood or unlikelihood
98
that the programs, payments, or benefits will be available in the future is also
- 3 - H.B. 503 02-13 13:11
99
admissible. The trier of fact may consider the evidence in determining the amount of
100
damages awarded to a plaintiff for future expenses.
101
(6) A provider of collateral sources is not entitled to recover any amount of benefits from a
102
health care provider, the plaintiff, or any other person or entity as reimbursement for
103
collateral source payments made prior to settlement or judgment, including any
104
payments made under Title 26B, Chapter 3, Part 10, Medical Benefits Recovery, except
105
to the extent that subrogation rights to amounts paid prior to settlement or judgment are
106
preserved as provided in this section.
107
(7) All policies of insurance providing benefits affected by this section are construed in
108
accordance with this section.
109
(8)(a) A court shall calculate any award of economic damages under this part based on
110
the amounts the plaintiff actually paid to a medical provider.
111
(b) A court may not calculate an award of economic damages based on amounts a
112
medical provider indicates on a bill or invoice.
113
Section 3. Section 78B-3-410 is amended to read:
114
78B-3-410 . Limitation of award of noneconomic damages and economic damages
115
in malpractice actions.
116
(1) [In a malpractice action against a health care provider, an injured plaintiff may recover
117
noneconomic losses ] Subject to Subsection (3), an injured plaintiff in a malpractice
118
action against a health care provider may only recover noneconomic losses to
119
compensate for pain, suffering, and inconvenience. The amount of damages awarded
120
for noneconomic loss may not exceed:
121
(a) for a cause of action arising before July 1, 2001, $250,000;
122
(b) for a cause of action arising on or after July 1, 2001 and before July 1, 2002, the
123
limitation is adjusted for inflation to $400,000;
124
(c) for a cause of action arising on or after July 1, 2002, and before May 15, 2010 the
125
$400,000 limitation described in Subsection (1)(b) shall be adjusted for inflation as
126
provided in Subsection (2); and
127
(d) for a cause of action arising on or after May 15, 2010, $450,000.
128
(2)(a) Beginning July 1, 2002 and each July 1 thereafter until July 1, 2009, the limit for
129
damages under Subsection (1)(c) shall be adjusted for inflation by the state treasurer.
130
[(b) By July 15 of each year until July 1, 2009, the state treasurer shall:]
131
[(i) certify the inflation-adjusted limit calculated under this Subsection (2); and]
132
[(ii) inform the Administrative Office of the Courts of the certified limit.]
- 4 - 02-13 13:11 H.B. 503
133
[(c)] (b) The amount resulting from Subsection (2)(a) shall:
134
(i) be rounded to the nearest $10,000; and
135
(ii) apply to a cause of action arising on or after the date the annual adjustment is
136
made.
137
(3) The maximum combined amount of economic and noneconomic damages awarded to
138
an injured plaintiff may not exceed $1,000,000, except to the extent required under Utah
139
Constitution, Article XVI, Section 5, for damages for injuries resulting in death.
140
[(3)] (4) As used in this section, "inflation" means the seasonally adjusted consumer price
141
index for all urban consumers as published by the Bureau of Labor Statistics of the
142
United States Department of Labor.
143
[(4)] (5) The limit under Subsection (1) does not apply to awards of punitive damages.
144
Section 4. Section 78B-3-412 is amended to read:
145
78B-3-412 . Notice of intent to commence action.
146
(1) A malpractice action against a health care provider may not be initiated unless and until
147
the plaintiff:
148
(a) gives the prospective [defendant] respondent, or [his] the respondent's executor or
149
successor, at least 90 days' prior notice of intent to commence an action in
150
accordance with this section; and
151
(b) except for an action against a dentist or a dental care provider, the plaintiff receives a
152
certificate of compliance from the division in accordance with Section 78B-3-418.
153
(2) The notice shall include:
154
(a) a general statement of the nature of the claim;
155
(b) the persons involved;
156
(c) the date, time, and place of the occurrence;
157
(d) the circumstances surrounding the claim;
158
(e) specific allegations of misconduct on the part of the prospective [defendant]
159
respondent; and
160
(f) the nature of the alleged injuries and other damages sustained.
161
(3) Notice may be in letter or affidavit form executed by the plaintiff or his attorney.
162
Service shall be accomplished by persons authorized and in the manner prescribed by
163
the Utah Rules of Civil Procedure for the service of the summons and complaint in a
164
civil action or by certified mail, return receipt requested, in which case notice shall be
165
considered served on the date of mailing.
166
(4) Notice shall be served within the time allowed for commencing a malpractice action
- 5 - H.B. 503 02-13 13:11
167
against a health care provider. If the notice is served less than 90 days prior to the
168
expiration of the applicable time period, the time for commencing the malpractice action
169
against the health care provider shall be extended to 120 days from the date of service of
170
notice.
171
(5) This section shall, for purposes of determining its retroactivity, not be construed as
172
relating to the limitation on the time for commencing any action, and shall apply only to
173
causes of action arising on or after April 1, 1976. This section shall not apply to third
174
party actions, counterclaims or crossclaims against a health care provider.
175
Section 5. Section 78B-3-416 is amended to read:
176
78B-3-416 . Division to provide prelitigation review panel -- Exemption --
177
Procedures -- Statute of limitations tolled -- Composition of panel -- Expenses -- Division
178
authorized to set license fees.
179
(1)(a) The division shall provide a [hearing] prelitigation review panel to conduct a
180
prelitigation panel review, in accordance with this part, in [alleged medical liability
181
cases against health care providers as defined in Section 78B-3-403, ] all malpractice
182
actions against a health care provider, except dentists or dental care providers.
183
(b)(i) The division shall establish procedures for [prelitigation consideration of
184
medical liability claims for damages arising out of the provision of or alleged
185
failure to provide health care] a prelitigation panel review.
186
(ii) The division may establish rules necessary to administer the process and
187
procedures related to [prelitigation hearings] a prelitigation panel review and the
188
conduct of [prelitigation hearings] a member of a prelitigation review panel or
189
participant in a prelitigation panel review in accordance with Sections 78B-3-416
190
through 78B-3-420.
191
(c) [The proceedings are] A prelitigation panel review is informal, nonbinding, and [are ]
192
not subject to Title 63G, Chapter 4, Administrative Procedures Act, but [are] is
193
compulsory as a condition precedent to commencing litigation.
194
(d) [Proceedings ] A prelitigation panel review that is conducted under authority of this
195
section [are] is confidential, privileged, and immune from civil process.
196
(e) The division may not provide more than one [hearing panel] prelitigation review panel
197
for each alleged [medical liability case against a health care provider] malpractice
198
action against a health care provider.
199
(2)(a) The party initiating a [medical liability action] malpractice action against a health
200
care provider shall file a request for prelitigation panel review with the division
- 6 - 02-13 13:11 H.B. 503
201
within 60 days after the service of a statutory notice of intent to commence action
202
under Section 78B-3-412.
203
(b) The request shall include a copy of the notice of intent to commence action[. The
204
request ] and the claimant shall [be mailed to] mail the request and notice of intent to
205
all health care providers named in the notice and request.
206
(3)(a) As used in this Subsection (3):
207
(i) "Court-appointed therapist" means a mental health therapist ordered by a court to
208
provide psychotherapeutic treatment to an individual, a couple, or a family in a
209
domestic case.
210
(ii) "Domestic case" means a proceeding under:
211
(A) Title 78B, Chapter 7, Protective Orders and Stalking Injunctions;
212
(B) Title 78B, Chapter 13, Utah Uniform Child Custody Jurisdiction and
213
Enforcement Act;
214
(C) Title 78B, Chapter 15, Utah Uniform Parentage Act;
215
(D) Title 81, Chapter 4, Dissolution of Marriage; or
216
(E) Title 81, Chapter 9, Custody, Parent-time, and Visitation.
217
(iii) "Mental health therapist" means the same as that term is defined in Section
218
58-60-102.
219
(b) If a court appoints a court-appointed therapist in a domestic case, a party to the
220
domestic case may not file a request for [a ]prelitigation panel review for a
221
malpractice action against the court-appointed therapist during the pendency of the
222
domestic case, unless:
223
(i) the party has requested that the court release the court-appointed therapist from the
224
appointment; and
225
(ii) the court finds good cause to release the court-appointed therapist from the
226
appointment.
227
(c) If a party is prohibited from filing a request for [a ]prelitigation panel review under
228
Subsection (3)(b), the applicable statute of limitations tolls until the earlier of:
229
(i) the court releasing the court-appointed therapist from the appointment as
230
described in Subsection (3)(b); or
231
(ii) the court entering a final order in the domestic case.
232
(4)(a) The filing of a request for prelitigation panel review under this section tolls the
233
applicable statute of limitations until the later of:
234
(i) 60 days following the division's issuance of:
- 7 - H.B. 503 02-13 13:11
235
(A) an opinion by the prelitigation panel; or
236
(B) a certificate of compliance under Section 78B-3-418; or
237
(ii) the expiration of the time for holding a [hearing ] prelitigation panel review under
238
Subsection (4)(b)(ii).
239
(b) The division shall:
240
(i) send any opinion issued by the panel to all parties by regular mail; and
241
(ii) complete a [prelitigation hearing ] prelitigation panel review under this section
242
within:
243
(A) 180 days after the filing of the request for prelitigation panel review; or
244
(B) any longer period as agreed upon in writing by all parties to the review.
245
[(c) If the prelitigation hearing has not been completed within the time limits established
246
in Subsection (4)(b)(ii), the claimant shall:]
247
[(i) file an affidavit of merit under the provisions of Section 78B-3-423; or]
248
[(ii) file an affidavit with the division within 180 days of the request for pre-litigation
249
review, in accordance with Subsection (4)(d), alleging that the respondent has
250
failed to reasonably cooperate in scheduling the hearing.]
251
(c) If a prelitigation panel review does not occur within the time limits under Subsection
252
(4)(b)(ii), the claimant may, no later than 180 days after the day on which the request
253
for prelitigation panel review was filed under Subsection (2), file with the division an
254
affidavit alleging, with supporting attachments, if any:
255
(i) that the respondent failed to reasonably cooperate in scheduling the prelitigation
256
panel review; or
257
(ii) any other reason that the prelitigation panel review did not occur within the time
258
limits under Subsection (4)(b)(ii).
259
(d) If the claimant files an affidavit under Subsection [(4)(c)(ii)] (4)(c):
260
(i) within 15 days of the filing of the affidavit[ under Subsection (4)(c)(ii)], the
261
division shall [determine] conclude, based solely on the affidavit and any
262
supporting attachments, whether[ either the respondent or the claimant failed to
263
reasonably cooperate in the scheduling of a pre-litigation hearing; and] :
264
(A) the respondent failed to reasonably cooperate in the scheduling of the
265
prelitigation panel review; and
266
(B) the claimant failed to reasonably cooperate in the scheduling of the
267
prelitigation panel review; and
268
(ii)(A) if the [determination is] division finds that the [respondent failed to
- 8 - 02-13 13:11 H.B. 503
269
reasonably cooperate in the scheduling of a hearing, and the ]claimant did not
270
fail to reasonably cooperate, the division shall[,] issue a certificate of
271
compliance for the claimant in accordance with [Section 78B-3-418] Subection
272
78B-3-418(3)(b), stating the division's determination and the facts upon which
273
the determination is based; or
274
(B) if the division makes a determination other than the determination in
275
Subsection (4)(d)(ii)(A), [the claimant shall file an affidavit of merit in
276
accordance with Section 78B-3-423, within 30 days of the determination of the
277
division under this Subsection (4)] the division shall issue a certificate of
278
compliance for the claimant, in accordance with Subsection 78B-3-418(3)(b),
279
stating the division's determination and the facts upon which the determination
280
is based.
281
(e)(i) The claimant and any respondent may agree by written stipulation [that no
282
useful purpose would be served by convening a prelitigation panel] to waive the
283
requirement to convene a prelitigation panel under this section.
284
(ii) When the stipulation is filed with the division, the division shall within 10 days
285
after receipt issue a certificate of compliance under [Section 78B-3-418]
286
Subsection 78B-3-418(3)(c), as it concerns the stipulating respondent, and stating
287
that the claimant has [complied with all conditions precedent to the
288
commencement of litigation regarding the claim] satisfied, by stipulation, the
289
condition precedent under Subsection (1)(c) to commencing litigation.
290
(5) The division shall provide for and appoint an appropriate panel [or panels to hear] to
291
consider complaints of medical liability and damages, made by or on behalf of any
292
patient who is an alleged victim of [medical liability] malpractice. The panels are
293
composed of:
294
(a) one member who is a resident lawyer currently licensed and in good standing to
295
practice law in this state and who shall serve as chairman of the panel, who is
296
appointed by the division from among qualified individuals who have registered with
297
the division indicating a willingness to serve as panel members, and a willingness to
298
comply with the rules of professional conduct governing lawyers in the state, and
299
who has completed division training regarding conduct of [panel hearings]
300
prelitigation panel reviews;
301
(b)(i) one or more members who are licensed health care providers listed under
302
Section 78B-3-403, who are practicing and knowledgeable in the same specialty
- 9 - H.B. 503 02-13 13:11
303
as the proposed [defendant] respondent, and who are appointed by the division in
304
accordance with Subsection (6); or
305
(ii) in claims against only a health care facility or the facility's employees, one
306
member who is an individual currently serving in a health care facility
307
administration position directly related to health care facility operations or
308
conduct that includes responsibility for the area of practice that is the subject of
309
the liability claim, and who is appointed by the division; and
310
(c) a lay panelist who is not a lawyer, doctor, hospital employee, or other health care
311
provider, and who is a responsible citizen of the state, selected and appointed by the
312
division from among individuals who have completed division training with respect
313
to panel [hearings] reviews.
314
(6)(a) Each person listed as a health care provider in Section 78B-3-403 and practicing
315
under a license issued by the state, is obligated as a condition of holding that license
316
to participate as a member of a medical liability prelitigation panel at reasonable
317
times, places, and intervals, upon issuance, with advance notice given in a reasonable
318
time frame, by the division of an Order to Participate as a Medical Liability
319
Prelitigation Panel Member.
320
(b) A licensee may be excused from appearance and participation as a panel member
321
upon the division finding participation by the licensee will create an unreasonable
322
burden or hardship upon the licensee.
323
(c) A licensee [whom] who the division finds failed to appear and participate as a panel
324
member when so ordered, without adequate explanation or justification and without
325
being excused for cause by the division, may be assessed an administrative fine not to
326
exceed $5,000.
327
(d) A licensee [whom] who the division finds intentionally or repeatedly failed to appear
328
and participate as a panel member when so ordered, without adequate explanation or
329
justification and without being excused for cause by the division, may be assessed an
330
administrative fine not to exceed $5,000, and is guilty of unprofessional conduct.
331
(e) All fines collected under Subsections (6)(c) and (d) shall be deposited into the
332
Physicians Education Fund created in Section 58-67a-1.
333
(f) The director of the division may collect a fine that is not paid by:
334
(i) referring the matter to a collection agency; or
335
(ii) bringing an action in the district court of the county where the person against
336
whom the penalty is imposed resides or in the county where the office of the
- 10 - 02-13 13:11 H.B. 503
337
director is located.
338
(g) A county attorney or the attorney general of the state shall provide legal assistance
339
and advice to the director in an action to collect a fine.
340
(h) A court shall award reasonable attorney fees and costs to the prevailing party in an
341
action brought by the division to collect a fine.
342
(7) Each person selected as a panel member shall certify, under oath, that [he] the member
343
has no bias or conflict of interest with respect to any matter under consideration.
344
(8) A member of [the] a prelitigation [hearing] review panel may not receive compensation
345
or benefits for the member's service, but may receive per diem and travel expenses in
346
accordance with:
347
(a) Section 63A-3-106;
348
(b) Section 63A-3-107; and
349
(c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
350
63A-3-107.
351
(9)(a) In addition to the actual cost of administering the licensure of health care
352
providers, the division may set license fees of health care providers within the limits
353
established by law equal to their proportionate costs of administering prelitigation
354
panels.
355
(b) The claimant bears none of the costs of administering the prelitigation panel except
356
under Section 78B-3-420.
357
Section 6. Section 78B-3-416.1 is enacted to read:
358
78B-3-416.1 . Division collection of prelitigation panel review data.
359
(1) The division shall:
360
(a) compile a written report summarizing the division's administration, including at least
361
the information described in Subsection (2);
362
(b) in compiling the written report under Subsection (1)(a), review information received
363
from the Administrative Office of the Courts under Section 78A-2-109.6; and
364
(c) provide the written report under Subsection (1)(a) to the Judiciary Interim Committee
365
no later than November 1 of each year.
366
(2) The report under Subsection (1) shall detail, for the period beginning on the day after
367
the day through which the last report covered, and ending on the day through which data
368
is available:
369
(a) the number of prelitigation panel reviews the division convened, by license class of
370
the respondents;
- 11 - H.B. 503 02-13 13:11
371
(b) the number of cases for which a claimant filed a complaint in court;
372
(c) the number of cases in which a provider and claimant agreed to forgo a prelitigation
373
panel review;
374
(d) the number of cases in which a provider and claimant agreed to use a prelitigation
375
panel review as binding arbitration;
376
(e) for each prelitigation panel review the division convened, the prelitigation review
377
panel's determinations regarding merit under Subsection 78B-3-418(2)(a);
378
(f) the number of cases that were settled after a prelitigation panel review and:
379
(i) before a complaint alleging a malpractice action against a health care provider in
380
court is filed in court; and
381
(ii) after a complaint described in Subsection (2)(g)(i) is filed; and
382
(g) for cases alleging a malpractice action against a health care provider that were
383
resolved, including by adjudication or stipulated settlement:
384
(i) the amount of damages sought as compared to the amount of damages awarded or
385
otherwise obtained, if known, including by category of:
386
(A) general or non-economic damages;
387
(B) specific, special, or economic damages; and
388
(C) punitive damages;
389
(ii) the number of cases that were dismissed with prejudice and without an award of
390
damages or any other economic relief to the claimant.
391
(3) The division may require the following persons to submit to the division the information
392
necessary for the division to comply with Subsection (1):
393
(a) a claimant;
394
(b) a respondent;
395
(c) a member of the prelitigation review panel; or
396
(d) a participant in the prelitigation panel review.
397
Section 7. Section 78B-3-418 is amended to read:
398
78B-3-418 . Decision and recommendations of panel.
399
(1)(a) The prelitigation review panel shall issue an opinion and the division shall issue a
400
certificate of compliance with the [pre-litigation hearing] prelitigation requirements of
401
this part in accordance with this section.
402
(b) A certificate of compliance issued in accordance with this section is proof that [the
403
claimant has complied with all conditions precedent under this part prior to the
404
commencement of litigation as required in Subsection 78B-3-412(1)] the claimant has
- 12 - 02-13 13:11 H.B. 503
405
met all conditions precedent, under this section, to commencing litigation.
406
(2)(a) The panel shall render [its] an opinion in writing not later than 30 days after the[
407
end of the proceedings] day on which the prelitigation panel review concludes, and
408
determine on the basis of the evidence whether:
409
(i) each claim against each health care provider has merit or has no merit; and
410
(ii) if a claim is deemed meritorious under Subsection (2)(a)(i), [whether ]the conduct
411
complained of resulted in harm to the claimant.
412
(b) There is no judicial or other review or appeal of the panel's [decision or
413
recommendations] opinion under Subsection (2)(a).
414
(3) The division shall issue a certificate of compliance to the claimant, for each respondent
415
named in the intent to file a claim under this part, if:
416
(a) for a named respondent, the panel issues an opinion [of merit ]under [Subsections
417
(2)(a)(i) and (ii)] Subsection (2)(a);
418
[(b) for a named respondent, the claimant files an affidavit of merit in accordance with
419
Section 78B-3-423 if the opinion under Subsection (1)(a) is non-meritorious under
420
either Subsection (2)(a)(i) or (ii);]
421
[(c)] (b) the claimant has complied with the provisions of Subsections 78B-3-416(4)(c)
422
and (d); or
423
[(d)] (c) the parties submitted a stipulation under Subsection 78B-3-416(4)(e).
424
Section 8. Section 78B-3-418.5 is enacted to read:
425
78B-3-418.5 . Attorney fees.
426
(1) A claimant in a malpractice action against a health care provider shall pay the
427
reasonable attorney fees and costs that any respondent incurs defending against any
428
pleaded claim or cause of action, if:
429
(a) the prelitigation review panel renders an opinion under Subsection 78B-3-418(2)(a)
430
that the claim or cause of action has no merit; and
431
(b) the claimant does not substantially prevail on the merits of the claim or cause of
432
action, as determined by a court, or by a binding arbit under Section 78B-3-421.
433
(2) A claimant in a malpractice action against a health care provider, or the claimant's
434
attorney, is liable to any respondent for the reasonable attorney fees and costs incurred
435
by the respondent, or by the respondent's insurer, in connection with any filing,
436
submission, prelitigation panel review, arbitration, or judicial proceeding under this part
437
for which a claimant files or submits an affidavit containing an allegation that the court
438
or arbitrator finds that the claimant knew, or should have known, to be baseless or false
- 13 - H.B. 503 02-13 13:11
439
at the time the affidavit was signed, filed, or submitted.
440
(3) A court, or an arbitrator under Section 78B-3-421, may award reasonable attorney fees
441
or costs under Subsection (1) only if the respondent files a motion for the attorney fees
442
or costs no later than 60 days after the day on which the court's or arbitrator's final
443
decision, judgment, or dismissal of all claims in the action is entered.
444
Section 9. Section 78B-3-424 is amended to read:
445
78B-3-424 . Limitation of liability for ostensible agent.
446
(1) For purposes of this section:
447
(a) "Agent" means a person who is an "employee," "worker," or "operative," as defined
448
in Section 34A-2-104, of a health care provider.
449
(b) "Ostensible agent" means a person:
450
(i) who is not an agent of the health care provider; and
451
(ii) who the plaintiff reasonably believes is an agent of the health care provider
452
because the health care provider intentionally, or as a result of a lack of ordinary
453
care, caused the plaintiff to believe that the person was an agent of the health care
454
provider.
455
(2) A health care provider named as a defendant in a medical malpractice action is not
456
liable for the acts or omissions of an ostensible agent if:
457
(a) the ostensible agent has privileges with the health care provider, but is not an agent
458
of the health care provider;
459
(b) the health care provider has, by policy or practice, ensured that a person providing
460
professional services has insurance of a type and amount required, if any is required,
461
by the rules or regulations as established in:
462
(i) medical staff by-laws for a health care facility; or
463
(ii) other health care facility contracts, indemnification agreements, rules or
464
regulations;
465
(c) the insurance required in Subsection (2)(b) is in effect at the time of the alleged act or
466
omission of the ostensible agent; and
467
(d) there is a claim of agency or ostensible agency in a plaintiff's notice of intent to
468
commence an action, and the health care provider, within 60 days of the service of
469
the notice of intent to commence an action, lists each person identified by the
470
plaintiff who the provider claims is not an agent or ostensible agent of the provider.
471
(3)(a) Subject to Subsection (3)(b), a health care facility or organization is not liable in a
472
malpractice action brought against the patient's health care provider if:
- 14 - 02-13 13:11 H.B. 503
473
(i) the patient's health care provider:
474
(A) is an employee of the health care facility, clinic, or organization; and
475
(B) was not acting or performing within the course of the health care facility's,
476
clinic's, or organization's employment at the time that the alleged malpractice
477
or injury occurred; and
478
(ii) the alleged malpractice or injury occurred at a location other than at the health
479
care facility, clinic, or organization described in Subsection (3)(a)(i).
480
(b) A claimant that names a health care facility, clinic, or organization described in
481
Subsection (3)(a)(i)(A) as a defendant in violation of Subsection (3)(a) shall:
482
(i) dismiss all claims against the health care facility, clinic, or organization no later
483
than seven days after the date on which the court, or the arbitrator under Section
484
78B-3-421, finds that the conditions under Subsection (3)(a) are satisfied; and
485
(ii) pay the reasonable attorney fees and costs incurred by the health care facility,
486
clinic, or organization that employs the patient's health care provider in defending
487
against the malpractice action.
488
[(3)] (4) This section applies to a cause of action that arises on or after July 1, 2010.
489
Section 10. Section 78B-8-201 is amended to read:
490
78B-8-201 . Basis for punitive damages awards -- Section inapplicable to DUI
491
cases or providing illegal controlled substances -- Division of award with state.
492
(1)(a) Except as otherwise provided by statute, punitive damages may be awarded only
493
if compensatory or general damages are awarded and it is established by clear and
494
convincing evidence that the acts or omissions of the tortfeasor are the result of
495
willful and malicious or intentionally fraudulent conduct, or conduct that manifests a [
496
knowing and reckless indifference toward, and a disregard of,] willful or malicious
497
disregard of the rights of others.
498
(b) The limitations, standards of evidence, and standards of conduct of Subsection (1)(a)
499
do not apply to any claim for punitive damages arising out of the tortfeasor's:
500
(i) operation of a motor vehicle or motorboat while voluntarily intoxicated or under
501
the influence of any drug or combination of alcohol and drugs as prohibited by
502
Section 41-6a-502;
503
(ii) causing death of another person by providing or administering an illegal
504
controlled substance to the person under Section 78B-3-801; or
505
(iii) providing an illegal controlled substance to any person in the chain of transfer
506
that connects directly to a person who subsequently provided or administered the
- 15 - H.B. 503 02-13 13:11
507
substance to a person whose death was caused in whole or in part by the substance.
508
(c) The award of a penalty under Section 78B-3-108 regarding shoplifting is not subject
509
to the prior award of compensatory or general damages under Subsection (1)(a)
510
whether or not restitution has been paid to the merchant prior to or as a part of a civil
511
action under Section 78B-3-108.
512
(2) Evidence of a party's wealth or financial condition shall be admissible only after a
513
finding of liability for punitive damages has been made.
514
(a) Discovery concerning a party's wealth or financial condition may only be allowed
515
after the party seeking punitive damages has established a prima facie case on the
516
record that an award of punitive damages is reasonably likely against the party about
517
whom discovery is sought and, if disputed, the court is satisfied that the discovery is
518
not sought for the purpose of harassment.
519
(b) Subsection (2)(a) does not apply to any claim for punitive damages arising out of the
520
tortfeasor's:
521
(i) operation of a motor vehicle or motorboat while voluntarily intoxicated or under
522
the influence of any drug or combination of alcohol and drugs as prohibited by
523
Section 41-6a-502;
524
(ii) causing death of another person or causing a person to be addicted by providing
525
or administering an illegal controlled substance to the person under Section
526
78B-3-801; or
527
(iii) providing an illegal controlled substance to any person in the chain of transfer
528
that connects directly to a person who subsequently provided or administered the
529
substance to a person whose death was caused in whole or in part by the substance.
530
(3)(a) In any case where punitive damages are awarded, the court shall enter judgment as
531
follows:
532
(i) for the first $50,000, judgment shall be in favor of the injured party; and
533
(ii) any amount in excess of $50,000 shall be divided equally between the state and
534
the injured party, and judgment to each entered accordingly.
535
(b)(i) The actual and bona fide attorney fees and costs incurred in obtaining and
536
collecting the judgment for punitive damages shall be considered to have been
537
incurred by the state and the injured party in proportion to the judgment entered in
538
each party's behalf.
539
(A) The state and injured party shall be responsible for each one's proportionate
540
share only.
- 16 - 02-13 13:11 H.B. 503
541
(B) The state is liable to pay its proportionate share only to the extent it receives
542
payment toward its judgment.
543
(ii) If the court awards attorney fees and costs to the injured party as a direct result of
544
the punitive damage award, the state shall have a corresponding credit in a
545
proportionate amount based on the amounts of the party's respective punitive
546
damage judgments. This credit may be applied as an offset against the amount of
547
attorney fees and costs charged to the state for obtaining the punitive damage
548
judgment.
549
(c) The state shall have all rights due a judgment creditor to collect the full amounts of
550
both punitive damage judgments until the judgments are fully satisfied.
551
(i) Neither party is required to pursue collection.
552
(ii) In pursuing collection, the state may exercise any of its collection rights under
553
Section 63A-3-301 et seq., Section 63A-3-502 et seq., and any other statutory
554
provisions. Any amounts collected on these judgments by either party shall be
555
held in trust and distributed as set forth in Subsection (3)(e).
556
(d) Unless all affected parties, including the state, expressly agree otherwise, collection
557
on the punitive damages judgment shall be deferred until all other judgments have
558
been fully paid. Any payment by or on behalf of any judgment debtor, whether
559
voluntary, by execution, or otherwise, shall be distributed and applied in the
560
following order:
561
(i) to the judgment for compensatory damage and any applicable judgment for
562
attorney fees and costs;
563
(ii) to the initial $50,000 of the punitive damage judgment;
564
(iii) to any judgment for attorney fees and costs awarded as a direct result of the
565
punitive damages; and
566
(iv) to the remaining judgments for punitive damages.
567
(e) Any partial payments shall be distributed equally between the state and injured party.
568
(f) After the payment of attorney fees and costs, all amounts paid on the state's judgment
569
shall be remitted to the state treasurer to be deposited into the General Fund.
570
Section 11. Repealer.
571
This bill repeals:
572
Section 78B-3-423, Affidavit of merit.
573
Section 12. Effective Date.
574
This bill takes effect on May 7, 2025.
- 17 -