Utah 2025 Regular Session

Utah Senate Bill SB0335 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	02-25 10:14 S.B. 335
2	2	1
3	3	Medical Malpractice Revisions
4	4	2025 GENERAL SESSION
5	5	STATE OF UTAH
6	6	Chief Sponsor: Scott D. Sandall
7	7	House Sponsor:
8	8	2
9	9
10	10	3
11	11	LONG TITLE
12	12	4
13	13	General Description:
14	14	5
15	15	This bill addresses malpractice actions against health care providers.
16	16	6
17	17	Highlighted Provisions:
18	18	7
19	19	This bill:
20	20	8
21	21	▸ with respect to a medical malpractice action:
22	22	9
23	23	● removes the requirement that a claimant submit an affidavit of merit;
24	24	10
25	25	● establishes data collection and reporting requirements for the Division of Professional
26	26	11
27	27	Licensing and the Administrative Office of the Courts;
28	28	12
29	29	● addresses the calculation of noneconomic losses;
30	30	13
31	31	● limits, subject to state constitutional protection, the combined amount to which a
32	32	14
33	33	claimant is potentially entitled for economic and noneconomic losses;
34	34	15
35	35	● obligates a plaintiff, in certain circumstances, to pay the reasonable attorney fees and
36	36	16
37	37	costs incurred by a defendant;
38	38	17
39	39	● precludes liability from attaching, in certain circumstances, to a medical facility,
40	40	18
41	41	clinic, or organization;
42	42	19
43	43	● amends the authority of prelitigation review panels and the process for conducting
44	44	20
45	45	panel reviews; and
46	46	21
47	47	▸ makes technical changes.
48	48	22
49	49	Money Appropriated in this Bill:
50	50	23
51	51	None
52	52	24
53	53	Other Special Clauses:
54	54	25
55	55	None
56	56	26
57	57	Utah Code Sections Affected:
58	58	27
59	59	AMENDS:
60	60	28
61	61	78B-3-405, as last amended by Laws of Utah 2023, Chapter 330
62	62	29
63	63	78B-3-410, as last amended by Laws of Utah 2010, Chapter 97
64	64	30
65	65	78B-3-412, as last amended by Laws of Utah 2022, Chapter 356
66	66	S.B. 335 S.B. 335 02-25 10:14
67	67	31
68	68	78B-3-416, as last amended by Laws of Utah 2024, Chapter 366
69	69	32
70	70	78B-3-418, as last amended by Laws of Utah 2022, Chapter 212
71	71	33
72	72	78B-3-424, as enacted by Laws of Utah 2010, Chapter 97
73	73	34
74	74	78B-8-201, as last amended by Laws of Utah 2011, Chapter 79
75	75	35
76	76	ENACTS:
77	77	36
78	78	78A-2-109.6, Utah Code Annotated 1953
79	79	37
80	80	78B-3-416.1, Utah Code Annotated 1953
81	81	38
82	82	78B-3-418.5, Utah Code Annotated 1953
83	83	39
84	84	REPEALS:
85	85	40
86	86	78B-3-423, as last amended by Laws of Utah 2022, Chapter 212
87	87	41
88	88
89	89	42
90	90	Be it enacted by the Legislature of the state of Utah:
91	91	43
92	92	Section 1. Section 78A-2-109.6 is enacted to read:
93	93	44
94	94	78A-2-109.6 . Professional licensing reporting -- Survey and report of
95	95	45
96	96	malpractice actions against health care providers.
97	97	46
98	98	The Administrative Office of the Courts shall provide to the Division of Professional
99	99	47
100	100	Licensing for each case filed alleging, as defined in Section 78B-3-403, a malpractice action
101	101	48
102	102	against a health care provider:
103	103	49
104	104	(1) a copy of the initial complaint, including any attachments; and
105	105	50
106	106	(2) a copy of any dispositive decisions issued.
107	107	51
108	108	Section 2. Section 78B-3-405 is amended to read:
109	109	52
110	110	78B-3-405 . Amount of award reduced by amounts of collateral sources available
111	111	53
112	112	to plaintiff -- No reduction where subrogation right exists -- Collateral sources defined --
113	113	54
114	114	Procedure to preserve subrogation rights -- Evidence admissible -- Exceptions.
115	115	55
116	116	(1) In all malpractice actions against health care providers as defined in Section 78B-3-403
117	117	56
118	118	in which damages are awarded to compensate the plaintiff for losses sustained, the court
119	119	57
120	120	shall reduce the amount of the award by the total of all amounts paid to the plaintiff
121	121	58
122	122	from all collateral sources which are available to him. No reduction may be made for
123	123	59
124	124	collateral sources for which a subrogation right exists as provided in this section nor
125	125	60
126	126	shall there be a reduction for any collateral payment not included in the award of
127	127	61
128	128	damages.
129	129	62
130	130	(2) Upon a finding of liability and an awarding of damages by the trier of fact, the court
131	131	63
132	132	shall receive evidence concerning the total amounts of collateral sources which have
133	133	64
134	134	been paid to or for the benefit of the plaintiff or are otherwise available to him. The
135	135	- 2 - 02-25 10:14 S.B. 335
136	136	65
137	137	court shall also take testimony of any amount which has been paid, contributed, or
138	138	66
139	139	forfeited by, or on behalf of the plaintiff or members of his immediate family to secure
140	140	67
141	141	his right to any collateral source benefit which he is receiving as a result of his injury,
142	142	68
143	143	and shall offset any reduction in the award by those amounts. Evidence may not be
144	144	69
145	145	received and a reduction may not be made with respect to future collateral source
146	146	70
147	147	benefits except as specified in Subsection (5).
148	148	71
149	149	(3) For purposes of this section "collateral source" means payments made to or for the
150	150	72
151	151	benefit of the plaintiff for:
152	152	73
153	153	(a) medical expenses and disability payments payable under the United States Social
154	154	74
155	155	Security Act, any federal, state, or local income disability act, or any other public
156	156	75
157	157	program, except the federal programs which are required by law to seek subrogation;
158	158	76
159	159	(b) any health, sickness, or income replacement insurance, automobile accident
160	160	77
161	161	insurance that provides health benefits or income replacement coverage, and any
162	162	78
163	163	other similar insurance benefits, except life insurance benefits available to the
164	164	79
165	165	plaintiff, whether purchased by the plaintiff or provided by others;
166	166	80
167	167	(c) any contract or agreement of any person, group, organization, partnership, or
168	168	81
169	169	corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or
170	170	82
171	171	other health care services, except benefits received as gifts, contributions, or
172	172	83
173	173	assistance made gratuitously; and
174	174	84
175	175	(d) any contractual or voluntary wage continuation plan provided by employers or any
176	176	85
177	177	other system intended to provide wages during a period of disability.
178	178	86
179	179	(4) To preserve subrogation rights for amounts paid or received prior to settlement or
180	180	87
181	181	judgment, a provider of collateral sources shall, at least 30 days before settlement or trial
182	182	88
183	183	of the action, serve a written notice upon each health care provider against whom the
184	184	89
185	185	malpractice action has been asserted. The written notice shall state:
186	186	90
187	187	(a) the name and address of the provider of collateral sources;
188	188	91
189	189	(b) the amount of collateral sources paid;
190	190	92
191	191	(c) the names and addresses of all persons who received payment; and
192	192	93
193	193	(d) the items and purposes for which payment has been made.
194	194	94
195	195	(5) Evidence is admissible of government programs that provide payments or benefits
196	196	95
197	197	available in the future to or for the benefit of the plaintiff to the extent available
198	198	96
199	199	irrespective of the recipient's ability to pay. Evidence of the likelihood or unlikelihood
200	200	97
201	201	that the programs, payments, or benefits will be available in the future is also
202	202	98
203	203	admissible. The trier of fact may consider the evidence in determining the amount of
204	204	- 3 - S.B. 335 02-25 10:14
205	205	99
206	206	damages awarded to a plaintiff for future expenses.
207	207	100
208	208	(6) A provider of collateral sources is not entitled to recover any amount of benefits from a
209	209	101
210	210	health care provider, the plaintiff, or any other person or entity as reimbursement for
211	211	102
212	212	collateral source payments made prior to settlement or judgment, including any
213	213	103
214	214	payments made under Title 26B, Chapter 3, Part 10, Medical Benefits Recovery, except
215	215	104
216	216	to the extent that subrogation rights to amounts paid prior to settlement or judgment are
217	217	105
218	218	preserved as provided in this section.
219	219	106
220	220	(7) All policies of insurance providing benefits affected by this section are construed in
221	221	107
222	222	accordance with this section.
223	223	108
224	224	(8)(a) A court shall calculate any award of economic damages under this part based on
225	225	109
226	226	amounts the plaintiff actually paid, or that were paid on the plaintiff's behalf, to a
227	227	110
228	228	medical provider.
229	229	111
230	230	(b) A court may not calculate an award of economic damages based on amounts a
231	231	112
232	232	medical provider indicates on a bill or invoice.
233	233	113
234	234	Section 3. Section 78B-3-410 is amended to read:
235	235	114
236	236	78B-3-410 . Limitation of award of noneconomic damages and economic damages
237	237	115
238	238	in malpractice actions.
239	239	116
240	240	(1) [In a malpractice action against a health care provider, an injured plaintiff may recover
241	241	117
242	242	noneconomic losses ] Subject to Subsection (3), an injured plaintiff in a malpractice
243	243	118
244	244	action against a health care provider may only recover noneconomic losses to
245	245	119
246	246	compensate for pain, suffering, and inconvenience. The amount of damages awarded
247	247	120
248	248	for noneconomic loss may not exceed:
249	249	121
250	250	(a) for a cause of action arising before July 1, 2001, $250,000;
251	251	122
252	252	(b) for a cause of action arising on or after July 1, 2001, and before July 1, 2002, the
253	253	123
254	254	limitation is adjusted for inflation to $400,000;
255	255	124
256	256	(c) for a cause of action arising on or after July 1, 2002, and before May 15, 2010, the
257	257	125
258	258	$400,000 limitation described in Subsection (1)(b) shall be adjusted for inflation as
259	259	126
260	260	provided in Subsection (2); and
261	261	127
262	262	(d) for a cause of action arising on or after May 15, 2010, $450,000.
263	263	128
264	264	(2)(a) Beginning July 1, 2002, and each July 1 thereafter until July 1, 2009, the limit for
265	265	129
266	266	damages under Subsection (1)(c) shall be adjusted for inflation by the state treasurer.
267	267	130
268	268	[(b) By July 15 of each year until July 1, 2009, the state treasurer shall:]
269	269	131
270	270	[(i) certify the inflation-adjusted limit calculated under this Subsection (2); and]
271	271	132
272	272	[(ii) inform the Administrative Office of the Courts of the certified limit.]
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274	274	133
275	275	[(c)] (b) The amount resulting from Subsection (2)(a) shall:
276	276	134
277	277	(i) be rounded to the nearest $10,000; and
278	278	135
279	279	(ii) apply to a cause of action arising on or after the date the annual adjustment is
280	280	136
281	281	made.
282	282	137
283	283	(3) The maximum combined amount of economic and noneconomic damages awarded to
284	284	138
285	285	an injured plaintiff may not exceed $1,000,000, except to the extent required under Utah
286	286	139
287	287	Constitution, Article XVI, Section 5, for damages for injuries resulting in death.
288	288	140
289	289	[(3)] (4) As used in this section, "inflation" means the seasonally adjusted consumer price
290	290	141
291	291	index for all urban consumers as published by the Bureau of Labor Statistics of the
292	292	142
293	293	United States Department of Labor.
294	294	143
295	295	[(4)] (5) The limit under Subsection (1) does not apply to awards of punitive damages.
296	296	144
297	297	Section 4. Section 78B-3-412 is amended to read:
298	298	145
299	299	78B-3-412 . Notice of intent to commence action.
300	300	146
301	301	(1) A malpractice action against a health care provider may not be initiated unless and until
302	302	147
303	303	the plaintiff:
304	304	148
305	305	(a) gives the prospective [defendant] respondent, or [his] the respondent's executor or
306	306	149
307	307	successor, at least 90 days' prior notice of intent to commence an action in
308	308	150
309	309	accordance with this section; and
310	310	151
311	311	(b) except for an action against a dentist or a dental care provider, the plaintiff receives a
312	312	152
313	313	certificate of compliance from the division in accordance with Section 78B-3-418.
314	314	153
315	315	(2) The notice shall include:
316	316	154
317	317	(a) a general statement of the nature of the claim;
318	318	155
319	319	(b) the persons involved;
320	320	156
321	321	(c) the date, time, and place of the occurrence;
322	322	157
323	323	(d) the circumstances surrounding the claim;
324	324	158
325	325	(e) specific allegations of misconduct on the part of the prospective [defendant]
326	326	159
327	327	respondent; and
328	328	160
329	329	(f) the nature of the alleged injuries and other damages sustained.
330	330	161
331	331	(3) Notice may be in letter or affidavit form executed by the plaintiff or his attorney.
332	332	162
333	333	Service shall be accomplished by persons authorized and in the manner prescribed by
334	334	163
335	335	the Utah Rules of Civil Procedure for the service of the summons and complaint in a
336	336	164
337	337	civil action or by certified mail, return receipt requested, in which case notice shall be
338	338	165
339	339	considered served on the date of mailing.
340	340	166
341	341	(4) Notice shall be served within the time allowed for commencing a malpractice action
342	342	- 5 - S.B. 335 02-25 10:14
343	343	167
344	344	against a health care provider. If the notice is served less than 90 days prior to the
345	345	168
346	346	expiration of the applicable time period, the time for commencing the malpractice action
347	347	169
348	348	against the health care provider shall be extended to 120 days from the date of service of
349	349	170
350	350	notice.
351	351	171
352	352	(5) This section shall, for purposes of determining its retroactivity, not be construed as
353	353	172
354	354	relating to the limitation on the time for commencing any action, and shall apply only to
355	355	173
356	356	causes of action arising on or after April 1, 1976. This section shall not apply to third
357	357	174
358	358	party actions, counterclaims or crossclaims against a health care provider.
359	359	175
360	360	Section 5. Section 78B-3-416 is amended to read:
361	361	176
362	362	78B-3-416 . Division to provide prelitigation review panel -- Exemption --
363	363	177
364	364	Procedures -- Statute of limitations tolled -- Composition of panel -- Expenses -- Division
365	365	178
366	366	authorized to set license fees.
367	367	179
368	368	(1)(a) The division shall provide a [hearing] prelitigation review panel to conduct a panel
369	369	180
370	370	review, in accordance with this part, in [alleged medical liability cases against health
371	371	181
372	372	care providers as defined in Section 78B-3-403, ] all malpractice actions against a
373	373	182
374	374	health care provider, except dentists or dental care providers.
375	375	183
376	376	(b)(i) The division shall establish procedures for [prelitigation consideration of
377	377	184
378	378	medical liability claims for damages arising out of the provision of or alleged
379	379	185
380	380	failure to provide health care] panel reviews.
381	381	186
382	382	(ii) The division may establish rules necessary to administer the process and
383	383	187
384	384	procedures related to [prelitigation hearings] panel reviews and the conduct of [
385	385	188
386	386	prelitigation hearings] a member of a prelitigation review panel or participant in a
387	387	189
388	388	panel review in accordance with Sections 78B-3-416 through 78B-3-420.
389	389	190
390	390	(c) [The proceedings are] A panel review is informal, nonbinding, and [are ]not subject
391	391	191
392	392	to Title 63G, Chapter 4, Administrative Procedures Act, but [are] is compulsory as a
393	393	192
394	394	condition precedent to commencing litigation.
395	395	193
396	396	(d) [Proceedings ] A panel review that is conducted under authority of this section [are] is
397	397	194
398	398	confidential, privileged, and immune from civil process.
399	399	195
400	400	(e) The division may not provide more than one [hearing panel] prelitigation review panel
401	401	196
402	402	for each alleged [medical liability case against a health care provider] malpractice
403	403	197
404	404	action against a health care provider.
405	405	198
406	406	(2)(a) The party initiating a [medical liability action] malpractice action against a health
407	407	199
408	408	care provider shall file a request for [prelitigation panel review] a panel review with
409	409	200
410	410	the division within 60 days after the service of a statutory notice of intent to
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412	412	201
413	413	commence action under Section 78B-3-412.
414	414	202
415	415	(b) The request shall include a copy of the notice of intent to commence action[. The
416	416	203
417	417	request ] and the claimant shall [be mailed to] mail the request and notice of intent to
418	418	204
419	419	all health care providers named in the notice and request.
420	420	205
421	421	(3)(a) As used in this Subsection (3):
422	422	206
423	423	(i) "Court-appointed therapist" means a mental health therapist ordered by a court to
424	424	207
425	425	provide psychotherapeutic treatment to an individual, a couple, or a family in a
426	426	208
427	427	domestic case.
428	428	209
429	429	(ii) "Domestic case" means a proceeding under:
430	430	210
431	431	(A) [Title 78B, ]Chapter 7, Protective Orders and Stalking Injunctions;
432	432	211
433	433	(B) [Title 78B, ]Chapter 13, Utah Uniform Child Custody Jurisdiction and
434	434	212
435	435	Enforcement Act;
436	436	213
437	437	(C) [Title 78B, ]Chapter 15, Utah Uniform Parentage Act;
438	438	214
439	439	(D) Title 81, Chapter 4, Dissolution of Marriage; or
440	440	215
441	441	(E) Title 81, Chapter 9, Custody, Parent-time, and Visitation.
442	442	216
443	443	(iii) "Mental health therapist" means the same as that term is defined in Section
444	444	217
445	445	58-60-102.
446	446	218
447	447	(b) If a court appoints a court-appointed therapist in a domestic case, a party to the
448	448	219
449	449	domestic case may not file a request for [a prelitigation panel review] a panel review
450	450	220
451	451	for a malpractice action against the court-appointed therapist during the pendency of
452	452	221
453	453	the domestic case, unless:
454	454	222
455	455	(i) the party has requested that the court release the court-appointed therapist from the
456	456	223
457	457	appointment; and
458	458	224
459	459	(ii) the court finds good cause to release the court-appointed therapist from the
460	460	225
461	461	appointment.
462	462	226
463	463	(c) If a party is prohibited from filing a request for [a prelitigation panel review] a panel
464	464	227
465	465	review under Subsection (3)(b), the applicable statute of limitations tolls until the
466	466	228
467	467	earlier of:
468	468	229
469	469	(i) the court releasing the court-appointed therapist from the appointment as
470	470	230
471	471	described in Subsection (3)(b); or
472	472	231
473	473	(ii) the court entering a final order in the domestic case.
474	474	232
475	475	(4)(a) The filing of a request for [prelitigation panel review] a panel review under this
476	476	233
477	477	section tolls the applicable statute of limitations until the later of:
478	478	234
479	479	(i) 60 days following the division's issuance of:
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481	481	235
482	482	(A) an opinion by the prelitigation panel; or
483	483	236
484	484	(B) a certificate of compliance under Section 78B-3-418; or
485	485	237
486	486	(ii) the expiration of the time for holding a [hearing ] panel review under Subsection
487	487	238
488	488	(4)(b)(ii).
489	489	239
490	490	(b) The division shall:
491	491	240
492	492	(i) send any opinion issued by the panel to all parties by regular mail; and
493	493	241
494	494	(ii) complete a [prelitigation hearing ] panel review under this section within:
495	495	242
496	496	(A) 180 days after the filing of the request for [prelitigation panel review] a panel
497	497	243
498	498	review; or
499	499	244
500	500	(B) any longer period as agreed upon in writing by all parties to the review.
501	501	245
502	502	[(c) If the prelitigation hearing has not been completed within the time limits established
503	503	246
504	504	in Subsection (4)(b)(ii), the claimant shall:]
505	505	247
506	506	[(i) file an affidavit of merit under the provisions of Section 78B-3-423; or]
507	507	248
508	508	[(ii) file an affidavit with the division within 180 days of the request for pre-litigation
509	509	249
510	510	review, in accordance with Subsection (4)(d), alleging that the respondent has
511	511	250
512	512	failed to reasonably cooperate in scheduling the hearing.]
513	513	251
514	514	(c) If a panel review does not occur within the time limits under Subsection (4)(b)(ii),
515	515	252
516	516	the claimant may, no later than 180 days after the day on which the request for a
517	517	253
518	518	panel review was filed under Subsection (2), file with the division an affidavit
519	519	254
520	520	alleging, with supporting attachments, if any:
521	521	255
522	522	(i) that the respondent failed to reasonably cooperate in scheduling the panel review;
523	523	256
524	524	or
525	525	257
526	526	(ii) any other reason that the panel review did not occur within the time limits under
527	527	258
528	528	Subsection (4)(b)(ii).
529	529	259
530	530	(d) If the claimant files an affidavit under Subsection [(4)(c)(ii)] (4)(c):
531	531	260
532	532	(i) within 15 days of the filing of the affidavit[ under Subsection (4)(c)(ii)], the
533	533	261
534	534	division shall [determine] conclude, based solely on the affidavit and any
535	535	262
536	536	supporting attachments, whether[ either the respondent or the claimant failed to
537	537	263
538	538	reasonably cooperate in the scheduling of a pre-litigation hearing; and] :
539	539	264
540	540	(A) the respondent failed to reasonably cooperate in the scheduling of the panel
541	541	265
542	542	review; and
543	543	266
544	544	(B) the claimant failed to reasonably cooperate in the scheduling of the panel
545	545	267
546	546	review; and
547	547	268
548	548	(ii)(A) if the [determination is] division finds that the [respondent failed to
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550	550	269
551	551	reasonably cooperate in the scheduling of a hearing, and the ]claimant did not
552	552	270
553	553	fail to reasonably cooperate, the division shall[,] issue a certificate of
554	554	271
555	555	compliance for the claimant in accordance with [Section 78B-3-418]
556	556	272
557	557	Subsection 78B-3-418(3)(b), stating the division's determination and the facts
558	558	273
559	559	upon which the determination is based; or
560	560	274
561	561	(B) if the division makes a determination other than the determination in
562	562	275
563	563	Subsection (4)(d)(ii)(A), [the claimant shall file an affidavit of merit in
564	564	276
565	565	accordance with Section 78B-3-423, within 30 days of the determination of the
566	566	277
567	567	division under this Subsection (4)] the division shall issue a certificate of
568	568	278
569	569	compliance for the claimant, in accordance with Subsection 78B-3-418(3)(b),
570	570	279
571	571	stating the division's determination and the facts upon which the determination
572	572	280
573	573	is based.
574	574	281
575	575	(e)(i) The claimant and any respondent may agree by written stipulation [that no
576	576	282
577	577	useful purpose would be served by convening a prelitigation panel] to waive the
578	578	283
579	579	requirement to convene a prelitigation review panel to conduct a panel review
580	580	284
581	581	under this section.
582	582	285
583	583	(ii) When the stipulation is filed with the division, the division shall within 10 days
584	584	286
585	585	after receipt issue a certificate of compliance under [Section 78B-3-418]
586	586	287
587	587	Subsection 78B-3-418(3)(c), as it concerns the stipulating respondent, and stating
588	588	288
589	589	that the claimant has [complied with all conditions precedent to the
590	590	289
591	591	commencement of litigation regarding the claim] satisfied, by stipulation, the
592	592	290
593	593	condition precedent under Subsection (1)(c) to commencing litigation.
594	594	291
595	595	(5) The division shall provide for and appoint an appropriate panel [or panels to hear] to
596	596	292
597	597	consider complaints of medical liability and damages, made by or on behalf of any
598	598	293
599	599	patient who is an alleged victim of [medical liability] malpractice. The panels are
600	600	294
601	601	composed of:
602	602	295
603	603	(a) one member who is a resident lawyer currently licensed and in good standing to
604	604	296
605	605	practice law in this state and who shall serve as chairman of the panel, who is
606	606	297
607	607	appointed by the division from among qualified individuals who have registered with
608	608	298
609	609	the division indicating a willingness to serve as panel members, and a willingness to
610	610	299
611	611	comply with the rules of professional conduct governing lawyers in the state, and
612	612	300
613	613	who has completed division training regarding conduct of [panel hearings] panel
614	614	301
615	615	reviews;
616	616	302
617	617	(b)(i) one or more members who are licensed health care providers listed under
618	618	- 9 - S.B. 335 02-25 10:14
619	619	303
620	620	Section 78B-3-403, who are practicing and knowledgeable in the same specialty
621	621	304
622	622	as the proposed [defendant] respondent, and who are appointed by the division in
623	623	305
624	624	accordance with Subsection (6); or
625	625	306
626	626	(ii) in claims against only a health care facility or the facility's employees, one
627	627	307
628	628	member who is an individual currently serving in a health care facility
629	629	308
630	630	administration position directly related to health care facility operations or
631	631	309
632	632	conduct that includes responsibility for the area of practice that is the subject of
633	633	310
634	634	the liability claim, and who is appointed by the division; and
635	635	311
636	636	(c) a lay panelist who is not a lawyer, doctor, hospital employee, or other health care
637	637	312
638	638	provider, and who is a responsible citizen of the state, selected and appointed by the
639	639	313
640	640	division from among individuals who have completed division training with respect
641	641	314
642	642	to panel [hearings] reviews.
643	643	315
644	644	(6)(a) Each person listed as a health care provider in Section 78B-3-403 and practicing
645	645	316
646	646	under a license issued by the state, is obligated as a condition of holding that license
647	647	317
648	648	to participate as a member of a medical liability prelitigation panel at reasonable
649	649	318
650	650	times, places, and intervals, upon issuance, with advance notice given in a reasonable
651	651	319
652	652	time frame, by the division of an Order to Participate as a Medical Liability
653	653	320
654	654	Prelitigation Panel Member.
655	655	321
656	656	(b) A licensee may be excused from appearance and participation as a panel member
657	657	322
658	658	upon the division finding participation by the licensee will create an unreasonable
659	659	323
660	660	burden or hardship upon the licensee.
661	661	324
662	662	(c) A licensee [whom] who the division finds failed to appear and participate as a panel
663	663	325
664	664	member when so ordered, without adequate explanation or justification and without
665	665	326
666	666	being excused for cause by the division, may be assessed an administrative fine not to
667	667	327
668	668	exceed $5,000.
669	669	328
670	670	(d) A licensee [whom] who the division finds intentionally or repeatedly failed to appear
671	671	329
672	672	and participate as a panel member when so ordered, without adequate explanation or
673	673	330
674	674	justification and without being excused for cause by the division, may be assessed an
675	675	331
676	676	administrative fine not to exceed $5,000, and is guilty of unprofessional conduct.
677	677	332
678	678	(e) All fines collected under Subsections (6)(c) and (d) shall be deposited into the
679	679	333
680	680	Physicians Education Fund created in Section 58-67a-1.
681	681	334
682	682	(f) The director of the division may collect a fine that is not paid by:
683	683	335
684	684	(i) referring the matter to a collection agency; or
685	685	336
686	686	(ii) bringing an action in the district court of the county where the person against
687	687	- 10 - 02-25 10:14 S.B. 335
688	688	337
689	689	whom the penalty is imposed resides or in the county where the office of the
690	690	338
691	691	director is located.
692	692	339
693	693	(g) A county attorney or the attorney general of the state shall provide legal assistance
694	694	340
695	695	and advice to the director in an action to collect a fine.
696	696	341
697	697	(h) A court shall award reasonable attorney fees and costs to the prevailing party in an
698	698	342
699	699	action brought by the division to collect a fine.
700	700	343
701	701	(7) Each person selected as a panel member shall certify, under oath, that [he] the member
702	702	344
703	703	has no bias or conflict of interest with respect to any matter under consideration.
704	704	345
705	705	(8) A member of [the] a prelitigation [hearing] review panel may not receive compensation
706	706	346
707	707	or benefits for the member's service, but may receive per diem and travel expenses in
708	708	347
709	709	accordance with:
710	710	348
711	711	(a) Section 63A-3-106;
712	712	349
713	713	(b) Section 63A-3-107; and
714	714	350
715	715	(c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
716	716	351
717	717	63A-3-107.
718	718	352
719	719	(9)(a) In addition to the actual cost of administering the licensure of health care
720	720	353
721	721	providers, the division may set license fees of health care providers within the limits
722	722	354
723	723	established by law equal to their proportionate costs of administering prelitigation
724	724	355
725	725	panels.
726	726	356
727	727	(b) The claimant bears none of the costs of administering the prelitigation panel except
728	728	357
729	729	under Section 78B-3-420.
730	730	358
731	731	Section 6. Section 78B-3-416.1 is enacted to read:
732	732	359
733	733	78B-3-416.1 . Division collection of panel review data.
734	734	360
735	735	(1) The division shall:
736	736	361
737	737	(a) compile a written report summarizing the division's administration, including at least
738	738	362
739	739	the information described in Subsection (2);
740	740	363
741	741	(b) in compiling the written report under Subsection (1)(a), review information received
742	742	364
743	743	from the Administrative Office of the Courts under Section 78A-2-109.6; and
744	744	365
745	745	(c) provide the written report under Subsection (1)(a) to the Judiciary Interim Committee
746	746	366
747	747	no later than November 1 of each year.
748	748	367
749	749	(2) The report under Subsection (1) shall detail, for the period beginning on the day after
750	750	368
751	751	the day through which the last report covered, and ending on the day through which data
752	752	369
753	753	is available:
754	754	370
755	755	(a) the number of panel reviews the division convened, by license class of the
756	756	- 11 - S.B. 335 02-25 10:14
757	757	371
758	758	respondents;
759	759	372
760	760	(b) the number of cases for which a claimant filed a complaint in court;
761	761	373
762	762	(c) the number of cases in which a provider and claimant agreed to forgo a panel review;
763	763	374
764	764	(d) the number of cases in which a provider and claimant agreed to use a panel review as
765	765	375
766	766	binding arbitration;
767	767	376
768	768	(e) for each panel review the division convened, the prelitigation review panel's
769	769	377
770	770	determinations regarding merit under Subsection 78B-3-418(2)(a);
771	771	378
772	772	(f) the number of cases that were settled after a panel review and:
773	773	379
774	774	(i) before a complaint alleging a malpractice action against a health care provider in
775	775	380
776	776	court is filed in court; and
777	777	381
778	778	(ii) after a complaint described in Subsection (2)(f)(i) is filed; and
779	779	382
780	780	(g) for cases alleging a malpractice action against a health care provider that were
781	781	383
782	782	resolved, including by adjudication or stipulated settlement:
783	783	384
784	784	(i) the amount of damages sought as compared to the amount of damages awarded or
785	785	385
786	786	otherwise obtained, if known, including by category of:
787	787	386
788	788	(A) general or non-economic damages;
789	789	387
790	790	(B) specific, special, or economic damages; and
791	791	388
792	792	(C) punitive damages; and
793	793	389
794	794	(ii) the number of cases that were dismissed with prejudice and without an award of
795	795	390
796	796	damages or any other economic relief to the claimant.
797	797	391
798	798	(3) The division may require the following persons to submit to the division the information
799	799	392
800	800	necessary for the division to comply with Subsection (1):
801	801	393
802	802	(a) a claimant;
803	803	394
804	804	(b) a respondent;
805	805	395
806	806	(c) a member of the prelitigation review panel; or
807	807	396
808	808	(d) a participant in the panel review.
809	809	397
810	810	Section 7. Section 78B-3-418 is amended to read:
811	811	398
812	812	78B-3-418 . Opinion and recommendations of panel.
813	813	399
814	814	(1)(a) The prelitigation review panel shall issue an opinion and the division shall issue a
815	815	400
816	816	certificate of compliance with the [pre-litigation hearing] prelitigation requirements of
817	817	401
818	818	this part in accordance with this section.
819	819	402
820	820	(b) A certificate of compliance issued in accordance with this section is proof that [the
821	821	403
822	822	claimant has complied with all conditions precedent under this part prior to the
823	823	404
824	824	commencement of litigation as required in Subsection 78B-3-412(1)] the claimant has
825	825	- 12 - 02-25 10:14 S.B. 335
826	826	405
827	827	met all conditions precedent to commencing litigation under this part.
828	828	406
829	829	(2)(a) The panel shall render [its] an opinion in writing not later than 30 days after the[
830	830	407
831	831	end of the proceedings] day on which the panel review concludes, and determine on
832	832	408
833	833	the basis of the evidence whether:
834	834	409
835	835	(i) each claim against each health care provider has merit or has no merit; and
836	836	410
837	837	(ii) if a claim is deemed meritorious under Subsection (2)(a)(i), [whether ]the conduct
838	838	411
839	839	complained of resulted in harm to the claimant.
840	840	412
841	841	(b) There is no judicial or other review or appeal of the panel's [decision or
842	842	413
843	843	recommendations] opinion under Subsection (2)(a).
844	844	414
845	845	(3) The division shall issue a certificate of compliance to the claimant, for each respondent
846	846	415
847	847	named in the intent to file a claim under this part, if:
848	848	416
849	849	(a) for a named respondent, the panel issues an opinion [of merit ]under [Subsections
850	850	417
851	851	(2)(a)(i) and (ii)] Subsection (2)(a);
852	852	418
853	853	[(b) for a named respondent, the claimant files an affidavit of merit in accordance with
854	854	419
855	855	Section 78B-3-423 if the opinion under Subsection (1)(a) is non-meritorious under
856	856	420
857	857	either Subsection (2)(a)(i) or (ii);]
858	858	421
859	859	[(c)] (b) the claimant has complied with the provisions of Subsections 78B-3-416(4)(c)
860	860	422
861	861	and (d); or
862	862	423
863	863	[(d)] (c) the parties submitted a stipulation under Subsection 78B-3-416(4)(e).
864	864	424
865	865	Section 8. Section 78B-3-418.5 is enacted to read:
866	866	425
867	867	78B-3-418.5 . Attorney fees.
868	868	426
869	869	(1) A claimant in a malpractice action against a health care provider shall pay the
870	870	427
871	871	reasonable attorney fees and costs that any respondent incurs defending against a
872	872	428
873	873	pleaded claim or cause of action, if:
874	874	429
875	875	(a) the prelitigation review panel renders an opinion under Subsection 78B-3-418(2)(a)
876	876	430
877	877	that the claim or cause of action has no merit; and
878	878	431
879	879	(b) the claimant does not substantially prevail on the merits of the claim or cause of
880	880	432
881	881	action, as determined by a court, or by an arbitrator under Section 78B-3-421.
882	882	433
883	883	(2) A claimant in a malpractice action against a health care provider, or the claimant's
884	884	434
885	885	attorney, is liable to any respondent for the reasonable attorney fees and costs incurred
886	886	435
887	887	by the respondent, or by the respondent's insurer, in connection with any filing,
888	888	436
889	889	submission, panel review, arbitration, or judicial proceeding under this part for which a
890	890	437
891	891	claimant files or submits an affidavit containing an allegation that the court or arbitrator
892	892	438
893	893	finds that the claimant knew, or should have known, to be baseless or false at the time
894	894	- 13 - S.B. 335 02-25 10:14
895	895	439
896	896	the affidavit was signed, filed, or submitted.
897	897	440
898	898	(3) A court, or an arbitrator under Section 78B-3-421, may award reasonable attorney fees
899	899	441
900	900	or costs under Subsection (1) only if the respondent files a motion for the attorney fees
901	901	442
902	902	or costs no later than 60 days after the day on which the court's or arbitrator's final
903	903	443
904	904	decision, judgment, or dismissal of all claims in the action is entered.
905	905	444
906	906	Section 9. Section 78B-3-424 is amended to read:
907	907	445
908	908	78B-3-424 . Limitation of liability for ostensible agent.
909	909	446
910	910	(1) For purposes of this section:
911	911	447
912	912	(a) "Agent" means a person who is an "employee," "worker," or "operative," as defined
913	913	448
914	914	in Section 34A-2-104, of a health care provider.
915	915	449
916	916	(b) "Ostensible agent" means a person:
917	917	450
918	918	(i) who is not an agent of the health care provider; and
919	919	451
920	920	(ii) who the plaintiff reasonably believes is an agent of the health care provider
921	921	452
922	922	because the health care provider intentionally, or as a result of a lack of ordinary
923	923	453
924	924	care, caused the plaintiff to believe that the person was an agent of the health care
925	925	454
926	926	provider.
927	927	455
928	928	(2) A health care provider named as a defendant in a medical malpractice action is not
929	929	456
930	930	liable for the acts or omissions of an ostensible agent if:
931	931	457
932	932	(a) the ostensible agent has privileges with the health care provider, but is not an agent
933	933	458
934	934	of the health care provider;
935	935	459
936	936	(b) the health care provider has, by policy or practice, ensured that a person providing
937	937	460
938	938	professional services has insurance of a type and amount required, if any is required,
939	939	461
940	940	by the rules or regulations as established in:
941	941	462
942	942	(i) medical staff by-laws for a health care facility; or
943	943	463
944	944	(ii) other health care facility contracts, indemnification agreements, rules or
945	945	464
946	946	regulations;
947	947	465
948	948	(c) the insurance required in Subsection (2)(b) is in effect at the time of the alleged act or
949	949	466
950	950	omission of the ostensible agent; and
951	951	467
952	952	(d) there is a claim of agency or ostensible agency in a plaintiff's notice of intent to
953	953	468
954	954	commence an action, and the health care provider, within 60 days of the service of
955	955	469
956	956	the notice of intent to commence an action, lists each person identified by the
957	957	470
958	958	plaintiff who the provider claims is not an agent or ostensible agent of the provider.
959	959	471
960	960	(3)(a) Subject to Subsection (3)(b), a health care facility or organization is not liable in a
961	961	472
962	962	malpractice action brought against the patient's health care provider if:
963	963	- 14 - 02-25 10:14 S.B. 335
964	964	473
965	965	(i) the patient's health care provider:
966	966	474
967	967	(A) is an employee of the health care facility, clinic, or organization; and
968	968	475
969	969	(B) was not acting or performing within the course of the health care facility's,
970	970	476
971	971	clinic's, or organization's employment at the time that the alleged malpractice
972	972	477
973	973	or injury occurred; and
974	974	478
975	975	(ii) the alleged malpractice or injury occurred at a location other than at the health
976	976	479
977	977	care facility, clinic, or organization described in Subsection (3)(a)(i).
978	978	480
979	979	(b) A claimant that names a health care facility, clinic, or organization described in
980	980	481
981	981	Subsection (3)(a) as a defendant shall:
982	982	482
983	983	(i) dismiss all claims against the health care facility, clinic, or organization no later
984	984	483
985	985	than seven days after the date on which the court, or the arbitrator under Section
986	986	484
987	987	78B-3-421, finds that the conditions under Subsection (3)(a) are satisfied; and
988	988	485
989	989	(ii) pay the reasonable attorney fees and costs incurred by the health care facility,
990	990	486
991	991	clinic, or organization that employs the patient's health care provider in defending
992	992	487
993	993	against the malpractice action after the seven day period under Subsection (3)(b).
994	994	488
995	995	[(3)] (4) This section applies to a cause of action that arises on or after July 1, 2010.
996	996	489
997	997	Section 10. Section 78B-8-201 is amended to read:
998	998	490
999	999	78B-8-201 . Basis for punitive damages awards -- Section inapplicable to DUI
1000	1000	491
1001	1001	cases or providing illegal controlled substances -- Division of award with state.
1002	1002	492
1003	1003	(1)(a) Except as otherwise provided by statute, punitive damages may be awarded only
1004	1004	493
1005	1005	if compensatory or general damages are awarded and it is established by clear and
1006	1006	494
1007	1007	convincing evidence that the acts or omissions of the tortfeasor are the result of
1008	1008	495
1009	1009	willful and malicious or intentionally fraudulent conduct[, or conduct that manifests
1010	1010	496
1011	1011	a knowing and reckless indifference toward, and a disregard of, the rights of others].
1012	1012	497
1013	1013	(b) The limitations, standards of evidence, and standards of conduct of Subsection (1)(a)
1014	1014	498
1015	1015	do not apply to any claim for punitive damages arising out of the tortfeasor's:
1016	1016	499
1017	1017	(i) operation of a motor vehicle or motorboat while voluntarily intoxicated or under
1018	1018	500
1019	1019	the influence of any drug or combination of alcohol and drugs as prohibited by
1020	1020	501
1021	1021	Section 41-6a-502;
1022	1022	502
1023	1023	(ii) causing death of another person by providing or administering an illegal
1024	1024	503
1025	1025	controlled substance to the person under Section 78B-3-801; or
1026	1026	504
1027	1027	(iii) providing an illegal controlled substance to any person in the chain of transfer
1028	1028	505
1029	1029	that connects directly to a person who subsequently provided or administered the
1030	1030	506
1031	1031	substance to a person whose death was caused in whole or in part by the substance.
1032	1032	- 15 - S.B. 335 02-25 10:14
1033	1033	507
1034	1034	(c) The award of a penalty under Section 78B-3-108 regarding shoplifting is not subject
1035	1035	508
1036	1036	to the prior award of compensatory or general damages under Subsection (1)(a)
1037	1037	509
1038	1038	whether or not restitution has been paid to the merchant prior to or as a part of a civil
1039	1039	510
1040	1040	action under Section 78B-3-108.
1041	1041	511
1042	1042	(2) Evidence of a party's wealth or financial condition shall be admissible only after a
1043	1043	512
1044	1044	finding of liability for punitive damages has been made.
1045	1045	513
1046	1046	(a) Discovery concerning a party's wealth or financial condition may only be allowed
1047	1047	514
1048	1048	after the party seeking punitive damages has established a prima facie case on the
1049	1049	515
1050	1050	record that an award of punitive damages is reasonably likely against the party about
1051	1051	516
1052	1052	whom discovery is sought and, if disputed, the court is satisfied that the discovery is
1053	1053	517
1054	1054	not sought for the purpose of harassment.
1055	1055	518
1056	1056	(b) Subsection (2)(a) does not apply to any claim for punitive damages arising out of the
1057	1057	519
1058	1058	tortfeasor's:
1059	1059	520
1060	1060	(i) operation of a motor vehicle or motorboat while voluntarily intoxicated or under
1061	1061	521
1062	1062	the influence of any drug or combination of alcohol and drugs as prohibited by
1063	1063	522
1064	1064	Section 41-6a-502;
1065	1065	523
1066	1066	(ii) causing death of another person or causing a person to be addicted by providing
1067	1067	524
1068	1068	or administering an illegal controlled substance to the person under Section
1069	1069	525
1070	1070	78B-3-801; or
1071	1071	526
1072	1072	(iii) providing an illegal controlled substance to any person in the chain of transfer
1073	1073	527
1074	1074	that connects directly to a person who subsequently provided or administered the
1075	1075	528
1076	1076	substance to a person whose death was caused in whole or in part by the substance.
1077	1077	529
1078	1078	(3)(a) In any case where punitive damages are awarded, the court shall enter judgment as
1079	1079	530
1080	1080	follows:
1081	1081	531
1082	1082	(i) for the first $50,000, judgment shall be in favor of the injured party; and
1083	1083	532
1084	1084	(ii) any amount in excess of $50,000 shall be divided equally between the state and
1085	1085	533
1086	1086	the injured party, and judgment to each entered accordingly.
1087	1087	534
1088	1088	(b)(i) The actual and bona fide attorney fees and costs incurred in obtaining and
1089	1089	535
1090	1090	collecting the judgment for punitive damages shall be considered to have been
1091	1091	536
1092	1092	incurred by the state and the injured party in proportion to the judgment entered in
1093	1093	537
1094	1094	each party's behalf.
1095	1095	538
1096	1096	(A) The state and injured party shall be responsible for each one's proportionate
1097	1097	539
1098	1098	share only.
1099	1099	540
1100	1100	(B) The state is liable to pay its proportionate share only to the extent it receives
1101	1101	- 16 - 02-25 10:14 S.B. 335
1102	1102	541
1103	1103	payment toward its judgment.
1104	1104	542
1105	1105	(ii) If the court awards attorney fees and costs to the injured party as a direct result of
1106	1106	543
1107	1107	the punitive damage award, the state shall have a corresponding credit in a
1108	1108	544
1109	1109	proportionate amount based on the amounts of the party's respective punitive
1110	1110	545
1111	1111	damage judgments. This credit may be applied as an offset against the amount of
1112	1112	546
1113	1113	attorney fees and costs charged to the state for obtaining the punitive damage
1114	1114	547
1115	1115	judgment.
1116	1116	548
1117	1117	(c) The state shall have all rights due a judgment creditor to collect the full amounts of
1118	1118	549
1119	1119	both punitive damage judgments until the judgments are fully satisfied.
1120	1120	550
1121	1121	(i) Neither party is required to pursue collection.
1122	1122	551
1123	1123	(ii) In pursuing collection, the state may exercise any of its collection rights under
1124	1124	552
1125	1125	Section 63A-3-301 et seq., Section 63A-3-502 et seq., and any other statutory
1126	1126	553
1127	1127	provisions. Any amounts collected on these judgments by either party shall be
1128	1128	554
1129	1129	held in trust and distributed as set forth in Subsection (3)(e).
1130	1130	555
1131	1131	(d) Unless all affected parties, including the state, expressly agree otherwise, collection
1132	1132	556
1133	1133	on the punitive damages judgment shall be deferred until all other judgments have
1134	1134	557
1135	1135	been fully paid. Any payment by or on behalf of any judgment debtor, whether
1136	1136	558
1137	1137	voluntary, by execution, or otherwise, shall be distributed and applied in the
1138	1138	559
1139	1139	following order:
1140	1140	560
1141	1141	(i) to the judgment for compensatory damage and any applicable judgment for
1142	1142	561
1143	1143	attorney fees and costs;
1144	1144	562
1145	1145	(ii) to the initial $50,000 of the punitive damage judgment;
1146	1146	563
1147	1147	(iii) to any judgment for attorney fees and costs awarded as a direct result of the
1148	1148	564
1149	1149	punitive damages; and
1150	1150	565
1151	1151	(iv) to the remaining judgments for punitive damages.
1152	1152	566
1153	1153	(e) Any partial payments shall be distributed equally between the state and injured party.
1154	1154	567
1155	1155	(f) After the payment of attorney fees and costs, all amounts paid on the state's judgment
1156	1156	568
1157	1157	shall be remitted to the state treasurer to be deposited into the General Fund.
1158	1158	569
1159	1159	Section 11. Repealer.
1160	1160	570
1161	1161	This bill repeals:
1162	1162	571
1163	1163	Section 78B-3-423, Affidavit of merit.
1164	1164	572
1165	1165	Section 12. Effective Date.
1166	1166	573
1167	1167	This bill takes effect on May 7, 2025.
1168	1168	- 17 -