Prelitigation Hearings in Medical Malpractice

By John D. “Jack” Ray

In Utah, medical malpractice tort reform began in earnest in 1976. Over the intervening years, the reforms have multiplied. New layers of limitations and procedural complexity have developed, seemingly by accretion. Almost nothing has been discarded. The result is a web of time-consuming requirements that a prospective claimant must successfully negotiate before ever filing a lawsuit.

In 1976, a petitioner was required to serve a notice of intent to commence litigation on the prospective defendants before filing suit. In 1985, the petitioner was required to complete a prelitigation process after filing the notice, but before filing suit. In 2010, the petitioner was required, in most cases, to also submit one or more affidavits of merit from qualified experts after the prelitigation hearing but before filing suit. Each requirement was created with time limits, extensions and exceptions.

If you represent the petitioner, the goal of this process is to obtain a certificate of compliance. The certificate is a prerequisite to filing a complaint in all cases except those against dentists.

The First Step
Petitioner serves a notice of intent to commence litigation on the care providers. Within 60 days, the petitioner must file a request for prelitigation review with the Utah Division of Occupational and Professional Licensing (DOPL) with a copy of the notice attached. The notice must be served as a complaint or sent by certified mail. Claims against dentists, but not the dentists’ clinic and staff, require only a notice. Dentists are exempt from the prelitigation hearing requirements.

If the notice is filed less than 90 days before the statute of limitations would expire, the new limitations period is 120 days from the date of service.

Filing the request tolls the statute of limitations until (1) dismissal of the prelitigation proceeding; (2) 60 days from issuance of the panel’s opinion or issuance of a certificate of compliance; or (3) the expiration of time for holding a hearing.

Setting a Hearing
After filing the request, DOPL either issues an approval or a denial. If denied, the statute of limitations will no longer be tolled and the time will run until petitioner files a new request for prelitigation review. Dismissal does not affect the new 120-day time limit if you served the notice within 90 days of expiration of the statute of limitations. The request must be filed with DOPL within 60 days of serving the notice or a new notice and request will need to be served and filed.

If the request is approved, respondent files a notice of appearance of counsel within 15 days. The respondent may also request a specific specialty to sit on the panel.

The petitioner will then contact the respondent to establish two mutually-acceptable dates for a prelitigation hearing. Petitioner files a notice of availability for hearing and type of health care provider panelists requested. The dates must be at least 45 days after filing the notice of availability. If you fail to timely file, DOPL can dismiss your request though DOPL may grant an extension on request.

If a notice of availability cannot be agreed to, petitioner files an affidavit of respondent’s failure to reasonably cooperate in scheduling hearing. This must be filed within 180 days of the request and must state that the prelitigation hearing could not be held within 180 days of request.

If DOPL determines that respondent failed to cooperate and that petitioner cooperated, they will issue a certificate of compliance. If DOPL determines that respondent cooperated or that petitioner failed to cooperate, petitioner must file affidavits of merit within 30 days of this determination in order to obtain the certificate.

If the agreed dates are acceptable to DOPL, they will issue a notice of prelitigation hearing and panel composition. Parties have five days to object to the composition of the panel.

If at any time the parties stipulate that the hearing will serve no useful purpose, DOPL will cancel the hearing and issue a certificate of compliance.

If there is a scheduling conflict, the parties have five days after discovery and two days prior to the hearing to file for a continuance. It will only be granted in extraordinary circumstances. If the continuance is granted, the requesting party must establish two mutually-agreeable dates for rescheduling. They must be no later than five days after the order of continuance and the hearing must occur within 180 days of the request.

If the petitioner is the requesting party and a rehearing is not timely filed, DOPL will dismiss the request without prejudice. If the respondent is the requesting party and a rehearing is not timely filed, DOPL will establish a new date that is acceptable to the petitioner and disallow continuances from the respondent.

The Hearing
Counsel for petitioner and respondent should arrange to attend the hearing with their clients. Prelitigation hearings are informal and nonbinding. There is no transcript made. There is no cross examination; however, the panel members may ask questions. The hearings are confidential.

Each party will have 15-20 minutes to make a presentation to the hearing panel. Each party may submit evidence by proffer. Attorneys have a wide variety of approaches. Most submit a selection of relevant records and explain their view of the case in the context of the records. They may choose to use medical imaging or diagrams or attach medical literature. Respondent physicians will often explain the care they provided. Some attorneys submit expert affidavits at the hearing. The petitioner may offer a brief rebuttal.

Following the hearing, the panel deliberates and decides two issues: (1) whether there was a breach in the standard of care; and (2) whether the breach in the standard of care harmed the petitioner. The panel issues its opinion within 30 days of the hearing. If the answer is affirmative to both questions, the opinion is meritorious and DOPL issues a certificate of compliance. If the answer to either question is negative, the opinion is non-meritorious. If non-meritorious, the petitioner must file affidavits of merit within 60 days of issuance of the panel opinion. Within that time, the petitioner may seek a 60-day extension to file the affidavits by submitting an affidavit for extension.

Affidavits of Merit
There must be one from counsel and one or more from appropriate health care provider(s) that address the issue(s) that the panel found to be non-meritorious.

The health care provider affidavit regarding standard of care must be from a care provider with the same licensure as the respondent. If one respondent is a physician, there need be only one physician affidavit as to all respondents if the physician offers an opinion as to each respondent.

If the panel found no breach of the standard of care, the health care provider affidavit(s) must include an opinion that there was a breach and that the breach caused the harm complained of in the notice.

If the panel found a breach in the standard of care but no causation, the affidavit only needs to address causation.

After the affidavits are filed, DOPL issues a certificate of compliance.

Apportioning Fault
Any respondent who wishes to apportion fault to another health care provider in a subsequent lawsuit or arbitration must undertake the prelitigation process as to that health care provider and obtain a certificate of compliance.

John D. “Jack” Ray has over 20 years of experience representing people whose lives have been seriously affected by unacceptable medical care. Jack has served in the Utah Association for Justice as a member of the board and is currently vice-president on the association’s executive committee. He received the organization’s Legislative Titan award for 2012. He served for 10 years on the Utah State Bar Ethics Advisory Opinion Committee as well as on the Model Utah Jury Instructions Subcommittee for Medical Malpractice. Jack regularly speaks at seminars. Jack can be contacted at (801) 531- 8900 or jray@fabianlaw.com.