Utah Code § 78B-3-401 Title.
78B-3-401. Title.
This part shall be known and may be cited as the "Utah Health Care Malpractice Act."
Renumbered and Amended by Chapter 3, 2008 General Session
Utah Health Care Malpractice Act
Utah Code tit. 78B, ch. 78B-3, pt. 78B-3-P4
in effectUtah Code § 78B-3-402 Legislative findings and declarations -- Purpose of act.
78B-3-402. Legislative findings and declarations -- Purpose of act.
(1) The Legislature finds and declares that the number of suits and claims for damages and the amount of judgments and settlements arising from health care has increased greatly in recent years. Because of these increases the insurance industry has substantially increased the cost of medical malpractice insurance. The effect of increased insurance premiums and increased claims is increased health care cost, both through the health care providers passing the cost of premiums to the patient and through the provider's practicing defensive medicine because he views a patient as a potential adversary in a lawsuit. Further, certain health care providers are discouraged from continuing to provide services because of the high cost and possible unavailability of malpractice insurance.
(2) In view of these recent trends and with the intention of alleviating the adverse effects which these trends are producing in the public's health care system, it is necessary to protect the public interest by enacting measures designed to encourage private insurance companies to continue to provide health-related malpractice insurance while at the same time establishing a mechanism to ensure the availability of insurance in the event that it becomes unavailable from private companies.
(3) In enacting this act, it is the purpose of the Legislature to provide a reasonable time in which actions may be commenced against health care providers while limiting that time to a specific period for which professional liability insurance premiums can be reasonably and accurately calculated; and to provide other procedural changes to expedite early evaluation and settlement of claims.
Renumbered and Amended by Chapter 3, 2008 General Session
Utah Code § 78B-3-403 Definitions.
78B-3-403. Definitions.
As used in this part:
(1) "Audiologist" means a person licensed to practice audiology under Title 58, Chapter 41, Speech-Language Pathology and Audiology Licensing Act.
(2) "Certified social worker" means a person licensed to practice as a certified social worker under Section 58-60-205.
(3) "Chiropractic physician" means a person licensed to practice chiropractic under Title 58, Chapter 73, Chiropractic Physician Practice Act.
(4) "Clinical social worker" means a person licensed to practice as a clinical social worker under Section 58-60-205.
(5) "Commissioner" means the commissioner of insurance as provided in Section 31A-2-102.
(6) "Dental hygienist" means a person licensed to engage in the practice of dental hygiene as defined in Section 58-69-102.
(7) "Dental care provider" means any person, partnership, association, corporation, or other facility or institution who causes to be rendered or who renders dental care or professional services as a dentist, dental hygienist, or other person rendering similar care and services relating to or arising out of the practice of dentistry or the practice of dental hygiene, and the officers, employees, or agents of any of the above acting in the course and scope of their employment.
(8) "Dentist" means a person licensed to engage in the practice of dentistry as defined in Section 58-69-102.
(9) "Division" means the Division of Professional Licensing created in Section 58-1-103.
(10) "Future damages" includes a judgment creditor's damages for future medical treatment, care or custody, loss of future earnings, loss of bodily function, or future pain and suffering.
(11)
(a) "Health care" means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement.
(b) "Health care" does not include an act that, based on the totality of the circumstances, is sexual in nature regardless of whether:
(i) the act was committed under the auspice of providing professional diagnosis, counseling, or treatment; or
(ii) at the time the act occurred, the victim believed the act was for medically or professionally appropriate diagnosis, counseling, or treatment.
(12) "Health care facility" means general acute hospitals, specialty hospitals, home health agencies, hospices, nursing care facilities, assisted living facilities, birthing centers, ambulatory surgical facilities, small health care facilities, health care facilities owned or operated by health maintenance organizations, and end stage renal disease facilities.
(13) "Health care provider" includes any person, partnership, association, corporation, or other facility or institution who causes to be rendered or who renders health care or professional services as a hospital, health care facility, physician, physician assistant, registered nurse, licensed practical nurse, nurse-midwife, licensed direct-entry midwife, dentist, dental hygienist, optometrist, clinical laboratory technologist, pharmacist, physical therapist, physical therapist assistant, podiatric physician, psychologist, chiropractic physician, naturopathic physician, osteopathic physician, osteopathic physician and surgeon, audiologist, speech-language pathologist, clinical social worker, certified social worker, social service worker, marriage and family counselor, practitioner of obstetrics, licensed athletic trainer, or others rendering similar care and services relating to or arising out of the health needs of persons or groups of persons and officers, employees, or agents of any of the above acting in the course and scope of their employment.
(14) "Hospital" means a public or private institution licensed under Title 26B, Chapter 2, Part 2, Health Care Facility Licensing and Inspection.
(15) "Licensed athletic trainer" means a person licensed under Title 58, Chapter 40a, Athletic Trainer Licensing Act.
(16) "Licensed direct-entry midwife" means a person licensed under the Direct-entry Midwife Act to engage in the practice of direct-entry midwifery as defined in Section 58-77-102.
(17) "Licensed practical nurse" means a person licensed to practice as a licensed practical nurse as provided in Section 58-31b-301.
(18) "Malpractice action against a health care provider" means any action against a health care provider, whether in contract, tort, breach of warranty, wrongful death, or otherwise, based upon alleged personal injuries relating to or arising out of health care rendered or which should have been rendered by the health care provider.
(19) "Marriage and family therapist" means a person licensed to practice as a marriage therapist or family therapist under Sections 58-60-305 and 58-60-405.
(20) "Naturopathic physician" means a person licensed to engage in the practice of naturopathic medicine as defined in Section 58-71-102.
(21) "Nurse-midwife" means a person licensed to engage in practice as a nurse midwife under Section 58-44a-301.
(22) "Optometrist" means a person licensed to practice optometry under Title 58, Chapter 16a, Utah Optometry Practice Act.
(23) "Osteopathic physician" means a person licensed to practice osteopathy under Title 58, Chapter 68, Utah Osteopathic Medical Practice Act.
(24) "Patient" means a person who is under the care of a health care provider, under a contract, express or implied.
(25) "Periodic payments" means the payment of money or delivery of other property to a judgment creditor at intervals ordered by the court.
(26) "Pharmacist" means a person licensed to practice pharmacy as provided in Section 58-17b-301.
(27) "Physical therapist" means a person licensed to practice physical therapy under Title 58, Chapter 24b, Physical Therapy Practice Act.
(28) "Physical therapist assistant" means a person licensed to practice physical therapy, within the scope of a physical therapist assistant license, under Title 58, Chapter 24b, Physical Therapy Practice Act.
(29) "Physician" means a person licensed to practice medicine and surgery under Title 58, Chapter 67, Utah Medical Practice Act.
(30) "Physician assistant" means a person licensed to practice as a physician assistant under Title 58, Chapter 70a, Utah Physician Assistant Act.
(31) "Podiatric physician" means a person licensed to practice podiatry under Title 58, Chapter 5a, Podiatric Physician Licensing Act.
(32) "Practitioner of obstetrics" means a person licensed to practice as a physician in this state under Title 58, Chapter 67, Utah Medical Practice Act, or under Title 58, Chapter 68, Utah Osteopathic Medical Practice Act.
(33) "Psychologist" means a person licensed under Title 58, Chapter 61, Psychologist Licensing Act, to engage in the practice of psychology as defined in Section 58-61-102.
(34) "Registered nurse" means a person licensed to practice professional nursing as provided in Section 58-31b-301.
(35) "Relative" means a patient's spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half brother, half sister, or spouse's parents. The term includes relationships that are created as a result of adoption.
(36) "Representative" means the spouse, parent, guardian, trustee, attorney-in-fact, person designated to make decisions on behalf of a patient under a medical power of attorney, or other legal agent of the patient.
(37) "Social service worker" means a person licensed to practice as a social service worker under Section 58-60-205.
(38) "Speech-language pathologist" means a person licensed to practice speech-language pathology under Title 58, Chapter 41, Speech-Language Pathology and Audiology Licensing Act.
(39) "Tort" means any legal wrong, breach of duty, or negligent or unlawful act or omission proximately causing injury or damage to another.
(40) "Unanticipated outcome" means the outcome of a medical treatment or procedure that differs from an expected result.
Amended by Chapter 330, 2023 General Session
Amended by Chapter 523, 2023 General Session
Utah Code § 78B-3-404 Statute of limitations -- Exceptions -- Application.
78B-3-404. Statute of limitations -- Exceptions -- Application.
(1) A malpractice action against a health care provider shall be commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs, but not to exceed four years after the date of the alleged act, omission, neglect, or occurrence.
(2) Notwithstanding Subsection (1):
(a) in an action where the allegation against the health care provider is that a foreign object has been wrongfully left within a patient's body, the claim shall be barred unless commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered, the existence of the foreign object wrongfully left in the patient's body, whichever first occurs; or
(b) in an action where it is alleged that a patient has been prevented from discovering misconduct on the part of a health care provider because that health care provider has affirmatively acted to fraudulently conceal the alleged misconduct, the claim shall be barred unless commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence, should have discovered the fraudulent concealment, whichever first occurs.
Amended by Chapter 384, 2012 General Session
Utah Code § 78B-3-405 Amount of award reduced by amounts of collateral sources available to plaintiff -- No reduction where subrogation right exists -- Collateral sources defined -- Procedure to preserve subrogation rights -- Evidence admissible -- Exceptions.
78B-3-405. Amount of award reduced by amounts of collateral sources available to plaintiff -- No reduction where subrogation right exists -- Collateral sources defined -- Procedure to preserve subrogation rights -- Evidence admissible -- Exceptions.
(1) In all malpractice actions against health care providers as defined in Section 78B-3-403 in which damages are awarded to compensate the plaintiff for losses sustained, the court shall reduce the amount of the award by the total of all amounts paid to the plaintiff from all collateral sources which are available to him. No reduction may be made for collateral sources for which a subrogation right exists as provided in this section nor shall there be a reduction for any collateral payment not included in the award of damages.
(2) Upon a finding of liability and an awarding of damages by the trier of fact, the court shall receive evidence concerning the total amounts of collateral sources which have been paid to or for the benefit of the plaintiff or are otherwise available to him. The court shall also take testimony of any amount which has been paid, contributed, or forfeited by, or on behalf of the plaintiff or members of his immediate family to secure his right to any collateral source benefit which he is receiving as a result of his injury, and shall offset any reduction in the award by those amounts. Evidence may not be received and a reduction may not be made with respect to future collateral source benefits except as specified in Subsection (5).
(3) For purposes of this section "collateral source" means payments made to or for the benefit of the plaintiff for:
(a) medical expenses and disability payments payable under the United States Social Security Act, any federal, state, or local income disability act, or any other public program, except the federal programs which are required by law to seek subrogation;
(b) any health, sickness, or income replacement insurance, automobile accident insurance that provides health benefits or income replacement coverage, and any other similar insurance benefits, except life insurance benefits available to the plaintiff, whether purchased by the plaintiff or provided by others;
(c) any contract or agreement of any person, group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services, except benefits received as gifts, contributions, or assistance made gratuitously; and
(d) any contractual or voluntary wage continuation plan provided by employers or any other system intended to provide wages during a period of disability.
(4) To preserve subrogation rights for amounts paid or received prior to settlement or judgment, a provider of collateral sources shall, at least 30 days before settlement or trial of the action, serve a written notice upon each health care provider against whom the malpractice action has been asserted. The written notice shall state:
(a) the name and address of the provider of collateral sources;
(b) the amount of collateral sources paid;
(c) the names and addresses of all persons who received payment; and
(d) the items and purposes for which payment has been made.
(5) Evidence is admissible of government programs that provide payments or benefits available in the future to or for the benefit of the plaintiff to the extent available irrespective of the recipient's ability to pay. Evidence of the likelihood or unlikelihood that the programs, payments, or benefits will be available in the future is also admissible. The trier of fact may consider the evidence in determining the amount of damages awarded to a plaintiff for future expenses.
(6) A provider of collateral sources is not entitled to recover any amount of benefits from a health care provider, the plaintiff, or any other person or entity as reimbursement for collateral source payments made prior to settlement or judgment, including any payments made under Title 26B, Chapter 3, Part 10, Medical Benefits Recovery, except to the extent that subrogation rights to amounts paid prior to settlement or judgment are preserved as provided in this section.
(7) All policies of insurance providing benefits affected by this section are construed in accordance with this section.
Amended by Chapter 330, 2023 General Session
Utah Code § 78B-3-405.5 Economic damages -- Judgments against personal assets.
78B-3-405.5. Economic damages -- Judgments against personal assets.
(1) This section applies to malpractice actions against health care providers, as defined in Section 78B-3-403.
(2) In a trial, the factfinder or court may not prejudice a defendant by knowing or considering evidence of the claimant's alleged losses for past medical expenses or the cost of medical equipment before:
(a) liability for the alleged losses has been established; and
(b) any claim for or award of noneconomic damages, if any, for the alleged losses has been fully adjudicated or entered.
(3)
(a) Subject to Subsection (3)(b):
(i) the court may add economic damages to an award, if any, under Subsection (2)(b) based on amounts that the plaintiff or a third party insurer, whether public or private, actually paid for medical expenses related to the injury at issue; and
(ii) if a plaintiff did not have insurance to pay medical expenses related to the injury at issue, the court may award economic damages for amounts the plaintiff actually paid or owes for medical care resulting from the loss.
(b) The court may not calculate an award of economic damages based solely on amounts indicated on a medical bill or invoice.
(4) A plaintiff may not pursue, collect, or execute on a judgment against an individual health care provider's personal income or assets, unless the court finds that:
(a) the provider's conduct was willful and malicious or intentionally fraudulent; or
(b) the defendant provider failed to maintain an insurance policy with a policy limit of at least $1,000,000.
(5) Prior to any award of damages to a plaintiff, a plaintiff may not make allegations that the court finds:
(a) are irrelevant to the adjudication of the claims at issue;
(b) are made primarily to coerce or induce settlement in an individual defendant provider; and
(c) pertain to a provider's personal income or assets.
Enacted by Chapter 503, 2025 General Session
Utah Code § 78B-3-406 Failure to obtain informed consent -- Proof required of patient -- Defenses -- Consent to health care.
78B-3-406. Failure to obtain informed consent -- Proof required of patient -- Defenses -- Consent to health care.
(1)
(a) When a person submits to health care rendered by a health care provider, it is presumed that actions taken by the health care provider are either expressly or impliedly authorized to be done.
(b) For a patient to recover damages from a health care provider in an action based upon the provider's failure to obtain informed consent, the patient must prove the following:
(i) that a provider-patient relationship existed between the patient and health care provider;
(ii) the health care provider rendered health care to the patient;
(iii) the patient suffered personal injuries arising out of the health care rendered;
(iv) the health care rendered carried with it a substantial and significant risk of causing the patient serious harm;
(v) the patient was not informed of the substantial and significant risk;
(vi) a reasonable, prudent person in the patient's position would not have consented to the health care rendered after having been fully informed as to all facts relevant to the decision to give consent; and
(vii) the unauthorized part of the health care rendered was the proximate cause of personal injuries suffered by the patient.
(2) In determining what a reasonable, prudent person in the patient's position would do under the circumstances, the finder of fact shall use the viewpoint of the patient before health care was provided and before the occurrence of any personal injuries alleged to have arisen from said health care.
(3) It shall be a defense to any malpractice action against a health care provider based upon alleged failure to obtain informed consent if:
(a) the risk of the serious harm which the patient actually suffered was relatively minor;
(b) the risk of serious harm to the patient from the health care provider was commonly known to the public;
(c) the patient stated, prior to receiving the health care complained of, that he would accept the health care involved regardless of the risk; or that he did not want to be informed of the matters to which he would be entitled to be informed;
(d) the health care provider, after considering all of the attendant facts and circumstances, used reasonable discretion as to the manner and extent to which risks were disclosed, if the health care provider reasonably believed that additional disclosures could be expected to have a substantial and adverse effect on the patient's condition; or
(e) the patient or the patient's representative executed a written consent which sets forth the nature and purpose of the intended health care and which contains a declaration that the patient accepts the risk of substantial and serious harm, if any, in hopes of obtaining desired beneficial results of health care and which acknowledges that health care providers involved have explained the patient's condition and the proposed health care in a satisfactory manner and that all questions asked about the health care and its attendant risks have been answered in a manner satisfactory to the patient or the patient's representative.
(4) The written consent shall be a defense to an action against a health care provider based upon failure to obtain informed consent unless the patient proves that the person giving the consent lacked capacity to consent or shows by clear and convincing evidence that the execution of the written consent was induced by the defendant's affirmative acts of fraudulent misrepresentation or fraudulent omission to state material facts.
(5) This act may not be construed to prevent any person 18 years old or over from refusing to consent to health care for the patient's own person upon personal or religious grounds.
(6) Except as provided in Section 76-7-304.5, the following persons are authorized and empowered to consent to any health care not prohibited by law:
(a) any parent, whether an adult or a minor, for the parent's minor child;
(b) any married person, for a spouse;
(c) any person temporarily standing in loco parentis, whether formally serving or not, for the minor under that person's care and any guardian for the guardian's ward;
(d) any person 18 years old or older for that person's parent who is unable by reason of age, physical or mental condition, to provide such consent;
(e) any patient 18 years old or older;
(f) any female regardless of age or marital status, when given in connection with her pregnancy or childbirth;
(g) in the absence of a parent, any adult for the adult's minor brother or sister;
(h) in the absence of a parent, any grandparent for the grandparent's minor grandchild;
(i) an emancipated minor as provided in Section 80-7-105;
(j) a minor who has contracted a lawful marriage;
(k) an unaccompanied homeless minor, as that term is defined in the McKinney-Vento Homeless Assistance Act of 1987, Pub. L. 100-77, as amended, who is 15 years old or older; and
(l) a minor receiving tobacco and nicotine cessation services under Section 26B-7-522.
(7) A person who in good faith consents or authorizes health care treatment or procedures for another as provided by this act may not be subject to civil liability.
(8) Notwithstanding any other provision of this section, if a health care provider fails to comply with the requirement in Section 58-1-509, the health care provider is presumed to have lacked informed consent with respect to the patient examination, as defined in Section 58-1-509.
Amended by Chapter 278, 2024 General Session
Utah Code § 78B-3-407 Limitation on actions against health care providers when parent or guardian refuses to consent to health care of child.
78B-3-407. Limitation on actions against health care providers when parent or guardian refuses to consent to health care of child.
(1) A malpractice action against a health care provider may not be brought on the basis of the consequences resulting from the refusal of a child's parent or guardian to consent to the child's health care, if:
(a) the health care is recommended by the health care provider;
(b) the parent or guardian is provided with sufficient information to make an informed decision regarding the recommendation of the health care provider; and
(c) the consent of the parent or guardian is required by law before the health care may be administered.
(2) The sole purpose of this section is to prohibit a malpractice action against a health care provider under the circumstances set forth by this section. This section may not be construed to:
(a) create a new cause of action;
(b) expand an existing cause of action;
(c) impose a new duty on a health care provider; or
(d) expand an existing duty of a health care provider.
Renumbered and Amended by Chapter 3, 2008 General Session
Utah Code § 78B-3-407.5 Requirements for written agreement or consent for egg retrieval.
78B-3-407.5. Requirements for written agreement or consent for egg retrieval.
(1) As used in this section:
(a) "Assisted reproduction" means the same as that term is defined in Section 81-5-102.
(b) "Donor" means an individual who provides the individual's egg for use in assisted reproduction that is to be performed on a recipient other than the individual or the individual's regular sexual partner.
(c) "Egg retrieval" means a procedure by which an egg is collected from an individual's ovarian follicles.
(d) "Reproductive tissue facility" means the facility that performs an egg retrieval.
(2) A written agreement or consent between a reproductive tissue facility and a donor for an egg retrieval shall contain a clause that discloses any reasonably foreseeable complication associated with the egg retrieval.
(3) A clause in a written agreement or consent between a reproductive tissue facility and a donor for an egg retrieval is against public policy and is void and unenforceable if the clause requires the donor to release the reproductive tissue facility from liability for any complication associated with the egg retrieval that arises within 90 days after the day on which the egg retrieval occurs.
Amended by Chapter 11, 2025 Special Session 1
Utah Code § 78B-3-408 Writing required as basis for liability for breach of guarantee, warranty, contract, or assurance of result.
78B-3-408. Writing required as basis for liability for breach of guarantee, warranty, contract, or assurance of result.
Liability may not be imposed upon any health care provider on the basis of an alleged breach of guarantee, warranty, contract, or assurance of result to be obtained from any health care rendered unless the guarantee, warranty, contract, or assurance is set forth in writing and signed by the health care provider or an authorized agent of the provider.
Renumbered and Amended by Chapter 3, 2008 General Session
Utah Code § 78B-3-409 Ad damnum clause prohibited in complaint.
78B-3-409. Ad damnum clause prohibited in complaint.
A dollar amount may not be specified in the prayer of a complaint filed in a malpractice action against a health care provider. The complaint shall merely pray for such damages as are reasonable in the circumstances.
Renumbered and Amended by Chapter 3, 2008 General Session
Utah Code § 78B-3-410 Limitation of award of noneconomic damages and economic damages in malpractice actions.
78B-3-410. Limitation of award of noneconomic damages and economic damages in malpractice actions.
(1) Subject to Subsection (3), an injured plaintiff in a malpractice action against a health care provider may only recover noneconomic losses to compensate for pain, suffering, and inconvenience. The amount of damages awarded for noneconomic loss may not exceed:
(a) for a cause of action arising before July 1, 2001, $250,000;
(b) for a cause of action arising on or after July 1, 2001 and before July 1, 2002, the limitation is adjusted for inflation to $400,000;
(c) for a cause of action arising on or after July 1, 2002, and before May 15, 2010 the $400,000 limitation described in Subsection (1)(b) shall be adjusted for inflation as provided in Subsection (2); and
(d) for a cause of action arising on or after May 15, 2010, $450,000.
(2)
(a) Beginning July 1, 2002 and each July 1 thereafter until July 1, 2009, the limit for damages under Subsection (1)(c) shall be adjusted for inflation by the Administrative Office of the Courts.
(b) The amount resulting from Subsection (2)(a) shall:
(i) be rounded to the nearest $10,000; and
(ii) apply to a cause of action arising on or after the date the annual adjustment is made.
(3) As used in this section, "inflation" means the seasonally adjusted consumer price index for all urban consumers as published by the Bureau of Labor Statistics of the United States Department of Labor.
(4) The limit under Subsection (1) does not apply to awards of punitive damages.
Amended by Chapter 503, 2025 General Session
Utah Code § 78B-3-411 Limitation on attorney's contingency fee in malpractice action.
78B-3-411. Limitation on attorney's contingency fee in malpractice action.
(1) In any malpractice action against a health care provider as defined in Section 78B-3-403, an attorney may not collect a contingent fee for representing a client seeking damages in connection with or arising out of personal injury or wrongful death caused by the negligence of another which exceeds 33-1/3% of the amount recovered.
(2) This limitation applies regardless of whether the recovery is by settlement, arbitration, judgment, or whether appeal is involved.
Renumbered and Amended by Chapter 3, 2008 General Session
Utah Code § 78B-3-412 Notice of intent to commence action.
78B-3-412. Notice of intent to commence action.
(1) A malpractice action against a health care provider may not be initiated unless and until the plaintiff:
(a) gives the prospective defendant or his executor or successor, at least 90 days' prior notice of intent to commence an action; and
(b) except for an action against a dentist or a dental care provider, the plaintiff receives a certificate of compliance from the division in accordance with Section 78B-3-418.
(2) The notice shall include:
(a) a general statement of the nature of the claim;
(b) the persons involved;
(c) the date, time, and place of the occurrence;
(d) the circumstances surrounding the claim;
(e) specific allegations of misconduct on the part of the prospective defendant; and
(f) the nature of the alleged injuries and other damages sustained.
(3) Notice may be in letter or affidavit form executed by the plaintiff or his attorney. Service shall be accomplished by persons authorized and in the manner prescribed by the Utah Rules of Civil Procedure for the service of the summons and complaint in a civil action or by certified mail, return receipt requested, in which case notice shall be considered served on the date of mailing.
(4) Notice shall be served within the time allowed for commencing a malpractice action against a health care provider. If the notice is served less than 90 days prior to the expiration of the applicable time period, the time for commencing the malpractice action against the health care provider shall be extended to 120 days from the date of service of notice.
(5) This section shall, for purposes of determining its retroactivity, not be construed as relating to the limitation on the time for commencing any action, and shall apply only to causes of action arising on or after April 1, 1976. This section shall not apply to third party actions, counterclaims or crossclaims against a health care provider.
Amended by Chapter 356, 2022 General Session
Utah Code § 78B-3-413 Professional liability insurance coverage for providers -- Insurance commissioner may require joint underwriting authority.
78B-3-413. Professional liability insurance coverage for providers -- Insurance commissioner may require joint underwriting authority.
(1) The commissioner may, after a public hearing, find that professional liability insurance coverage for health care providers is not readily available in the voluntary market in a specific part of this state, and that the public interest requires that action be taken.
(2) The commissioner may promulgate rules and implement plans to provide insurance coverage through all insurers issuing professional liability policies and individual and group accident and sickness policies providing medical, surgical or hospital expense coverage on either a prepaid or an expense incurred basis, including personal injury protection and medical expense coverage issued incidental to liability insurance policies.
Amended by Chapter 146, 2009 General Session
Utah Code § 78B-3-414 Periodic payment of future damages in malpractice actions.
78B-3-414. Periodic payment of future damages in malpractice actions.
(1) In any malpractice action against a health care provider, as defined in Section 78B-3-403, the court shall, at the request of any party, order that future damages which equal or exceed $100,000, less amounts payable for attorney fees and other costs which are due at the time of judgment, shall be paid by periodic payments rather than by a lump sum payment.
(2) In rendering a judgment which orders the payment of future damages by periodic payments, the court shall order periodic payments to provide a fair correlation between the sustaining of losses and the payment of damages.
(a) Lost future earnings shall be paid over the judgment creditor's work life expectancy.
(b) The court shall also order, when appropriate, that periodic payments increase at a fixed rate, equal to the rate of inflation which the finder of fact used to determine the amount of future damages, or as measured by the most recent Consumer Price Index applicable to Utah for all goods and services.
(c) The present cash value of all periodic payments shall equal the fact finder's award of future damages, less any amount paid for attorney fees and costs.
(d) The present cash value of periodic payments shall be determined by discounting the total amount of periodic payments projected over the judgment creditor's life expectancy, by the rate of interest which the finder of fact used to reduce the amount of future damages to present value, or the rate of interest available at the time of trial on one year U.S. Government Treasury Bills.
(3) Before periodic payments of future damages may be ordered, the court shall require a judgment debtor to post security which assures full payment of those damages. Security for payment of a judgment of periodic payments may be in one or more of the following forms:
(a) a bond executed by a qualified insurer;
(b) an annuity contract executed by a qualified insurer;
(c) evidence of applicable and collectable liability insurance with one or more qualified insurers;
(d) an agreement by one or more qualified insurers to guarantee payment of the judgment; or
(e) any other form of security approved by the court.
(4) Security which complies with this section may also serve as a supersedeas bond, where one is required.
(5) A judgment which orders payment of future damages by periodic payments shall specify the recipient or recipients of the payments, the dollar amount of the payments, the interval between payments, and the number of payments or the period of time over which payments shall be made. Those payments may only be modified in the event of the death of the judgment creditor.
(6) If the court finds that the judgment debtor, or the assignee of his obligation to make periodic payments, has failed to make periodic payments as ordered by the court, it shall, in addition to the required periodic payments, order the judgment debtor or his assignee to pay the judgment creditor all damages caused by the failure to make payments, including court costs and attorney fees.
(7) The obligation to make periodic payments for all future damages, other than damages for loss of future earnings, shall cease upon the death of the judgment creditor. Damages awarded for loss of future earnings may not be reduced or payments terminated by reason of the death of the judgment creditor, but shall be paid to persons to whom the judgment creditor owed a duty of support, as provided by law, immediately prior to his death. In that case the court which rendered the original judgment may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages in accordance with this section.
(8) If security is posted in accordance with Subsection (3), and approved by a final judgment entered under this section, the judgment is considered to be satisfied, and the judgment debtor on whose behalf the security is posted shall be discharged.
Renumbered and Amended by Chapter 3, 2008 General Session
Utah Code § 78B-3-415 Actions under Utah Governmental Immunity Act.
78B-3-415. Actions under Utah Governmental Immunity Act.
The provisions of this part shall apply to malpractice actions against health care providers which are brought under the Utah Governmental Immunity Act if applicable. This part may not affect the requirements for filing notices of claims, times for commencing actions and limitations on amounts recoverable under the Utah Governmental Immunity Act.
Renumbered and Amended by Chapter 3, 2008 General Session
Utah Code § 78B-3-416 Division to provide review panel -- Exemption -- Procedures -- Statute of limitations tolled -- Composition of panel -- Expenses -- Division authorized to set license fees.
78B-3-416. Division to provide review panel -- Exemption -- Procedures -- Statute of limitations tolled -- Composition of panel -- Expenses -- Division authorized to set license fees.
(1)
(a) The division shall provide a prelitigation review panel to conduct a panel review in accordance with this part, in all malpractice actions against a health care provider, except dentists or dental care providers.
(b)
(i) The division shall establish procedures for panel reviews.
(ii) The division may establish rules necessary to administer the process and procedures related to a panel review and the conduct of a member of a prelitigation review panel or participant in a panel review in accordance with Sections 78B-3-416 through 78B-3-420.
(c) A panel review is informal, nonbinding, and not subject to Title 63G, Chapter 4, Administrative Procedures Act, but is compulsory as a condition precedent to commencing litigation.
(d) A panel review that is conducted under authority of this section is confidential, privileged, and immune from civil process.
(e) The division may not provide more than one review panel for each alleged malpractice action against a health care provider.
(2)
(a) The party initiating a malpractice action against a health care provider shall file a request for a prelitigation panel review with the division within 60 days after the service of a statutory notice of intent to commence action under Section 78B-3-412.
(b) The request shall include a copy of the notice of intent to commence action and the claimant shall mail the request and notice of intent to all health care providers named in the notice and request.
(3)
(a) As used in this Subsection (3):
(i) "Court-appointed therapist" means a mental health therapist ordered by a court to provide psychotherapeutic treatment to an individual, a couple, or a family in a domestic case.
(ii) "Domestic case" means a proceeding under:
(A) Chapter 7, Protective Orders and Stalking Injunctions;
(B) Title 81, Chapter 4, Dissolution of Marriage;
(C) Title 81, Chapter 5, Uniform Parentage Act;
(D) Title 81, Chapter 9, Custody, Parent-time, and Visitation; or
(E) Title 81, Chapter 11, Uniform Child Custody Jurisdiction and Enforcement Act.
(iii) "Mental health therapist" means the same as that term is defined in Section 58-60-102.
(b) If a court appoints a court-appointed therapist in a domestic case, a party to the domestic case may not file a request for a prelitigation panel review for a malpractice action against the court-appointed therapist during the pendency of the domestic case, unless:
(i) the party has requested that the court release the court-appointed therapist from the appointment; and
(ii) the court finds good cause to release the court-appointed therapist from the appointment.
(c) If a party is prohibited from filing a request for a panel review under Subsection (3)(b), the applicable statute of limitations tolls until the earlier of:
(i) the court releasing the court-appointed therapist from the appointment as described in Subsection (3)(b); or
(ii) the court entering a final order in the domestic case.
(4)
(a) The filing of a request for a prelitigation panel review under this section tolls the applicable statute of limitations until the later of:
(i) 60 days following the division's issuance of:
(A) an opinion by the review panel; or
(B) a certificate of compliance under Section 78B-3-418; or
(ii) the expiration of the time for holding a panel review under Subsection (4)(b)(ii).
(b) The division shall:
(i) send any opinion issued by the panel to all parties by regular mail; and
(ii) complete a panel review under this section within:
(A) 180 days after the filing of the request for prelitigation panel review; or
(B) any longer period as agreed upon in writing by all parties to the review.
(c) If a panel review does not occur within the time limits under Subsection (4)(b)(ii), the claimant or respondent may, no later than 180 days after the day on which the request for a panel review was filed under Subsection (2), file with the division an affidavit alleging with supporting attachments, if any:
(i) that the claimant or respondent failed to reasonably cooperate in scheduling the panel review; or
(ii) any other reason that the panel review did not occur within the time limits under Subsection (4)(b)(ii).
(d) If the claimant or respondent files an affidavit under Subsection (4)(c):
(i) within 15 days of the filing of the affidavit, the division shall conclude, based solely on the affidavit and any supporting attachments, whether the claimant or respondent failed to reasonably cooperate in the scheduling of the panel review; and
(ii)
(A) if the division finds that the claimant or respondent did not fail to reasonably cooperate, the division shall issue a certificate of compliance for the claimant in accordance with Subsection 78B-3-418(3)(b), stating the division's determination and the facts upon which the determination is based; or
(B) if the division makes a determination other than the determination in Subsection (4)(d)(ii)(A), the division shall, subject to Subsection (4)(f), issue a certificate of compliance for the claimant, in accordance with Subsection 78B-3-418(3)(b), stating the division's determination and the facts upon which the determination is based.
(e)
(i) The claimant and any respondent may agree by written stipulation to waive the requirement to convene a panel review under this section.
(ii) When the stipulation is filed with the division, the division shall within 10 days after receipt issue a certificate of compliance under Subsection 78B-3-418(3)(c), as it concerns the stipulating respondent, and stating that the claimant has satisfied, by stipulation, the condition precedent under Subsection (1)(c) to commencing litigation.
(f) The division may not issue a certificate of compliance if the division finds under Subsection (4)(d)(ii)(B) that the claimant failed to reasonably cooperate in the scheduling of the panel review.
(5) The division shall provide for and appoint an appropriate panel to consider complaints of medical liability and damages, made by or on behalf of any patient who is an alleged victim of malpractice. The panels are composed of:
(a) one member who is a resident lawyer currently licensed and in good standing to practice law in this state and who shall serve as chairman of the panel, who is appointed by the division from among qualified individuals who have registered with the division indicating a willingness to serve as panel members, and a willingness to comply with the rules of professional conduct governing lawyers in the state, and who has completed division training regarding conduct of panel reviews;
(b)
(i) one or more members who are licensed health care providers listed under Section 78B-3-403, who are practicing and knowledgeable in the same specialty as the proposed respondent, and who are appointed by the division in accordance with Subsection (6); or
(ii) in claims against only a health care facility or the facility's employees, one member who is an individual currently serving in a health care facility administration position directly related to health care facility operations or conduct that includes responsibility for the area of practice that is the subject of the liability claim, and who is appointed by the division; and
(c) a lay panelist who is not a lawyer, doctor, hospital employee, or other health care provider, and who is a responsible citizen of the state, selected and appointed by the division from among individuals who have completed division training with respect to panel reviews.
(6)
(a) Each person listed as a health care provider in Section 78B-3-403 and practicing under a license issued by the state, is obligated as a condition of holding that license to participate as a member of a prelitigation review panel at reasonable times, places, and intervals, upon issuance, with advance notice given in a reasonable time frame, by the division of an Order to Participate as a Medical Liability Prelitigation Panel Member.
(b) A licensee may be excused from appearance and participation as a panel member upon the division finding participation by the licensee will create an unreasonable burden or hardship upon the licensee.
(c) A licensee who the division finds failed to appear and participate as a panel member when so ordered, without adequate explanation or justification and without being excused for cause by the division, may be assessed an administrative fine not to exceed $5,000.
(d) A licensee who the division finds intentionally or repeatedly failed to appear and participate as a panel member when so ordered, without adequate explanation or justification and without being excused for cause by the division, may be assessed an administrative fine not to exceed $5,000, and is guilty of unprofessional conduct.
(e) All fines collected under Subsections (6)(c) and (d) shall be deposited into the Physicians Education Fund created in Section 58-67a-1.
(f) The director of the division may collect a fine that is not paid by:
(i) referring the matter to a collection agency; or
(ii) bringing an action in the district court of the county where the person against whom the penalty is imposed resides or in the county where the office of the director is located.
(g) A county attorney or the attorney general of the state shall provide legal assistance and advice to the director in an action to collect a fine.
(h) A court shall award reasonable attorney fees and costs to the prevailing party in an action brought by the division to collect a fine.
(7) Each person selected as a panel member shall certify, under oath, that the member has no bias or conflict of interest with respect to any matter under consideration.
(8) A member of a prelitigation review panel may not receive compensation or benefits for the member's service, but may receive per diem and travel expenses in accordance with:
(a) Section 63A-3-106;
(b) Section 63A-3-107; and
(c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and 63A-3-107.
(9)
(a) In addition to the actual cost of administering the licensure of health care providers, the division may set license fees of health care providers within the limits established by law equal to their proportionate costs of administering prelitigation panels.
(b) The claimant bears none of the costs of administering the prelitigation panel except under Section 78B-3-420.
Amended by Chapter 426, 2025 General Session
Utah Code § 78B-3-417 Proceedings -- Authority of panel -- Rights of parties to proceedings.
78B-3-417. Proceedings -- Authority of panel -- Rights of parties to proceedings.
(1) No record of the proceedings is required and all evidence, documents, and exhibits are returned to the parties or witnesses who provided the evidence, documents, and exhibits at the end of the proceedings upon the request of the parties or witnesses who provided the evidence.
(2) The division may issue subpoenas for medical records directly related to the claim of medical liability in accordance with division rule and in compliance with the following:
(a) the subpoena shall be prepared by the requesting party in proper form for issuance by the division; and
(b) the subpoena shall be accompanied by:
(i) an affidavit prepared by the person requesting the subpoena attesting to the fact the medical record subject to subpoena is believed to be directly related to the medical liability claim to which the subpoena is related; or
(ii) by a written release for the medical records to be provided to the person requesting the subpoena, signed by the individual who is the subject of the medical record or by that individual's guardian or conservator.
(3) Per diem reimbursement to panel members and expenses incurred by the panel in the conduct of prelitigation panel hearings shall be paid by the division. Expenses related to subpoenas are paid by the requesting party, including witness fees and mileage.
(4) The proceedings are informal and formal rules of evidence are not applicable. There is no discovery or perpetuation of testimony in the proceedings, except upon special order of the panel, and for good cause shown demonstrating extraordinary circumstances.
(5)
(a) A party is entitled to attend, personally or with counsel, and participate in the proceedings, except upon special order of the panel and unanimous agreement of the parties. The proceedings are confidential and closed to the public.
(b) No party has the right to cross-examine, rebut, or demand that customary formalities of civil trials and court proceedings be followed. The panel may, however, request special or supplemental participation of some or all parties in particular respects.
(c) Communications between the panel and the parties, except the testimony of the parties on the merits of the dispute, are disclosed to all other parties.
(6) The division shall appoint a panel to consider the claim and set the matter for panel review as soon as practicable after receipt of a request.
(7) Parties may be represented by counsel in proceedings before a panel.
Renumbered and Amended by Chapter 3, 2008 General Session
Utah Code § 78B-3-418 Opinion and recommendations of panel.
78B-3-418. Opinion and recommendations of panel.
(1)
(a) The prelitigation review panel shall issue an opinion and the division shall issue a certificate of compliance with the prelitigation requirements of this part in accordance with this section.
(b) A certificate of compliance issued in accordance with this section is proof that the claimant has met all conditions precedent under this section to commencing litigation.
(2)
(a) The panel shall render an opinion in writing not later than 30 days after the day on which the panel review concludes, and determine on the basis of the evidence whether:
(i) each claim against each health care provider has merit or has no merit; and
(ii) if a claim is deemed meritorious under Subsection (2)(a)(i), the conduct complained of resulted in harm to the claimant.
(b) There is no judicial or other review or appeal of the panel's opinion under Subsection (2)(a).
(3) The division shall issue a certificate of compliance to the claimant, for each respondent named in the notice of intent to file a claim under this part, if:
(a) for a named respondent, the panel issues an opinion under Subsection (2)(a);
(b) the claimant has complied with the provisions of Subsections 78B-3-416(4)(c) and (d); or
(c) the parties submitted a stipulation under Subsection 78B-3-416(4)(e).
Amended by Chapter 503, 2025 General Session
Utah Code § 78B-3-418.5 Attorney fees.
78B-3-418.5. Attorney fees.
(1) The court may award attorney fees and costs to a respondent provider if:
(a)
(i) a prelitigation review panel renders an opinion under Subsection 78B-3-418(2)(a) that a claimant's claim or cause of action has no merit; or
(ii) the court finds that the claimant did not receive a certificate of compliance because the plaintiff failed to reasonably cooperate in the scheduling of the prelitigation panel review under Subsection 78B-3-416(4)(f);
(b) the claimant proceeds to litigate the malpractice action against a health care provider without obtaining an affidavit of merit under Section 78B-3-423; and
(c) the court finds that the claimant did not substantially prevail.
(2) A claimant in a malpractice action against a health care provider, or the claimant's attorney, is liable to any respondent for the reasonable attorney fees and costs incurred by the respondent, or by the respondent's insurer, in connection with any filing, submission, panel review, arbitration, or judicial proceeding under this part for which a claimant files or submits an affidavit containing an allegation that the court or arbitrator finds that the claimant knew, or should have known, to be baseless or false at the time the affidavit was signed, filed, or submitted.
(3) A court, or an arbitrator under Section 78B-3-421, may award reasonable attorney fees or costs under Subsection (1) only if the respondent files a motion for the attorney fees or costs no later than 60 days after the day on which the court's or arbitrator's final decision, judgment, or dismissal of all claims in the action is entered.
Enacted by Chapter 503, 2025 General Session
Utah Code § 78B-3-419 Evidence of proceedings not admissible in subsequent action -- Panelist may not be compelled to testify -- Immunity of panelist from civil liability -- Information regarding professional conduct.
78B-3-419. Evidence of proceedings not admissible in subsequent action -- Panelist may not be compelled to testify -- Immunity of panelist from civil liability -- Information regarding professional conduct.
(1) Evidence of the proceedings conducted by the medical review panel and its results, opinions, findings, and determinations are not admissible as evidence in any civil action or arbitration proceeding subsequently brought by the claimant against any respondent and are not reportable to any health care facility or health care insurance carrier as a part of any credentialing process.
(2) No panelist may be compelled to testify in a civil action subsequently filed with regard to the subject matter of the panel's review. A panelist has immunity from civil liability arising from participation as a panelist and for all communications, findings, opinions, and conclusions made in the course and scope of duties prescribed by this section.
(3) Nothing in this chapter may be interpreted to prohibit the division from considering any information contained in a statutory notice of intent to commence action, request for prelitigation panel review, or written findings of a panel with respect to the division's determining whether a licensee engaged in unprofessional or unlawful conduct.
Amended by Chapter 275, 2013 General Session
Utah Code § 78B-3-420 Proceedings considered a binding arbitration hearing upon written agreement of parties -- Compensation to members of panel.
78B-3-420. Proceedings considered a binding arbitration hearing upon written agreement of parties -- Compensation to members of panel.
Upon written agreement by all parties, the proceeding may be considered a binding arbitration hearing and proceed under Title 78B, Chapter 11, Utah Uniform Arbitration Act, except for the selection of the panel, which is done as set forth in Subsection 78B-3-416(5). If the proceeding is considered an arbitration proceeding, the parties are equally responsible for compensation to the members of the panel for services rendered.
Amended by Chapter 212, 2022 General Session
Utah Code § 78B-3-421 Arbitration agreements.
78B-3-421. Arbitration agreements.
(1) After May 2, 1999, for a binding arbitration agreement between a patient and a health care provider to be validly executed or, if the requirements of this Subsection (1) have not been previously met on at least one occasion, renewed:
(a) the patient shall be given, in writing, the following information on:
(i) the requirement that the patient must arbitrate a claim instead of having the claim heard by a judge or jury;
(ii) the role of an arbitrator and the manner in which arbitrators are selected under the agreement;
(iii) the patient's responsibility, if any, for arbitration-related costs under the agreement;
(iv) the right of the patient to decline to enter into the agreement and still receive health care if Subsection (3) applies;
(v) the automatic renewal of the agreement each year unless the agreement is canceled in writing before the renewal date;
(vi) the right of the patient to have questions about the arbitration agreement answered;
(vii) the right of the patient to rescind the agreement within 10 days of signing the agreement; and
(viii) the right of the patient to require mediation of the dispute prior to the arbitration of the dispute;
(b) the agreement shall require that:
(i) except as provided in Subsection (1)(b)(ii), a panel of three arbitrators shall be selected as follows:
(A) one arbitrator collectively selected by all persons claiming damages;
(B) one arbitrator selected by the health care provider; and
(C) a third arbitrator:
(I) jointly selected by all persons claiming damages and the health care provider; or
(II) if both parties cannot agree on the selection of the third arbitrator, the other two arbitrators shall appoint the third arbitrator from a list of individuals approved as arbitrators by the state or federal courts of Utah; or
(ii) if both parties agree, a single arbitrator may be selected;
(iii) all parties waive the requirement of Section 78B-3-416 to appear before a hearing panel in a malpractice action against a health care provider;
(iv) the patient be given the right to rescind the agreement within 10 days of signing the agreement;
(v) the term of the agreement be for one year and that the agreement be automatically renewed each year unless the agreement is canceled in writing by the patient or health care provider before the renewal date;
(vi) the patient has the right to retain legal counsel;
(vii) the agreement only apply to:
(A) an error or omission that occurred after the agreement was signed, provided that the agreement may allow a person who would be a proper party in court to participate in an arbitration proceeding;
(B) the claim of:
(I) a person who signed the agreement;
(II) a person on whose behalf the agreement was signed under Subsection (6); and
(III) the unborn child of the person described in this Subsection (1)(b)(vii)(B), for 12 months from the date the agreement is signed; and
(C) the claim of a person who is not a party to the contract if the sole basis for the claim is an injury sustained by a person described in Subsection (1)(b)(vii)(B); and
(c) the patient shall be verbally encouraged to:
(i) read the written information required by Subsection (1)(a) and the arbitration agreement; and
(ii) ask any questions.
(2) When a medical malpractice action is arbitrated, the action shall:
(a) be subject to Chapter 11, Utah Uniform Arbitration Act; and
(b) include any one or more of the following when requested by the patient before an arbitration hearing is commenced:
(i) mandatory mediation;
(ii) retention of the jointly selected arbitrator for both the liability and damages stages of an arbitration proceeding if the arbitration is bifurcated; and
(iii) the filing of the panel's award of damages as a judgement against the provider in the appropriate district court.
(3) Notwithstanding Subsection (1), a patient may not be denied health care on the sole basis that the patient or a person described in Subsection (6) refused to enter into a binding arbitration agreement with a health care provider.
(4) A written acknowledgment of having received a written explanation of a binding arbitration agreement signed by or on behalf of the patient shall be a defense to a claim that the patient did not receive a written explanation of the agreement as required by Subsection (1) unless the patient:
(a) proves that the person who signed the agreement lacked the capacity to do so; or
(b) shows by clear and convincing evidence that the execution of the agreement was induced by the health care provider's affirmative acts of fraudulent misrepresentation or fraudulent omission to state material facts.
(5) The requirements of Subsection (1) do not apply to a claim governed by a binding arbitration agreement that was executed or renewed before May 3, 1999.
(6) A legal guardian or a person described in Subsection 78B-3-406(6), except a person temporarily standing in loco parentis, may execute or rescind a binding arbitration agreement on behalf of a patient.
(7) This section does not apply to any arbitration agreement that is subject to the Federal Arbitration Act, 9 U.S.C. Sec. 1 et seq.
Amended by Chapter 189, 2014 General Session
Utah Code § 78B-3-422 Evidence of disclosures -- Civil proceedings -- Unanticipated outcomes -- Medical care.
78B-3-422. Evidence of disclosures -- Civil proceedings -- Unanticipated outcomes -- Medical care.
(1) As used in this section:
(a) "Defendant" means the defendant in a malpractice action against a health care provider.
(b) "Health care provider" includes an agent of a health care provider.
(c) "Patient" includes any person associated with the patient.
(2) In any civil action or arbitration proceeding relating to an unanticipated outcome of medical care, any unsworn statement, affirmation, gesture, or conduct made to the patient by the defendant shall be inadmissible as evidence of an admission against interest or of liability if it:
(a) expresses:
(i) apology, sympathy, commiseration, condolence, or compassion; or
(ii) a general sense of benevolence; or
(b) describes:
(i) the sequence of events relating to the unanticipated outcome of medical care;
(ii) the significance of events; or
(iii) both.
(3) Except as provided in Subsection (2), this section does not alter any other law or rule that applies to the admissibility of evidence in a medical malpractice action.
Renumbered and Amended by Chapter 3, 2008 General Session
Utah Code § 78B-3-423 Affidavit of merit.
78B-3-423. Affidavit of merit.
(1)
(a) A claimant who elects to file an affidavit of merit shall file the affidavit of merit:
(i) within 60 days after the day on which the pre-litigation panel issues an opinion, if the claimant receives a finding from the pre-litigation panel in accordance with Section 78B-3-418 of non-meritorious for either:
(A) the claim of breach of applicable standard of care; or
(B) that the breach of care was the proximate cause of injury;
(ii) within 60 days after the day on which the time limit in Subsection 78B-3-416(4)(b)(ii) expires, if a pre-litigation hearing is not held within the time limits under Subsection 78B-3-416(4)(b)(ii); or
(iii) within 30 days after the day on which the division makes a determination under Subsection 78B-3-416(4)(d)(ii)(B), if the division makes a determination under Subsection 78B-3-416(4)(d)(ii)(B).
(b) A claimant who elects to file an affidavit of merit under Subsection (1)(a) shall:
(i) file the affidavit of merit with the division; and
(ii) serve each defendant with the affidavit of merit in accordance with Subsection 78B-3-412(3).
(2) A claimant may proceed to litigate and pursue a judicial remedy regardless of whether:
(a) the claimant has obtained or filed an affidavit of merit under this section;
(b) a review panel deemed the claimant's claims to have merit; or
(c) the claimant participated in a review panel.
(3) The affidavit of merit shall:
(a) be executed by the claimant's attorney or the claimant if the claimant is proceeding pro se, stating that the affiant has consulted with and reviewed the facts of the case with a health care provider who has determined after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of a medical liability action; and
(b) include an affidavit signed by a health care provider who meets the requirements of Subsection (5):
(i) stating that in the health care provider's opinion, there are reasonable grounds to believe that the applicable standard of care was breached;
(ii) stating that in the health care provider's opinion, the breach was a proximate cause of the injury claimed in the notice of intent to commence action; and
(iii) stating the reasons for the health care provider's opinion.
(4) The statement required in Subsection (3)(b)(i) shall be waived if the claimant received an opinion that there was a breach of the applicable standard of care under Subsection 78B-3-418(2)(a)(i).
(5) A health care provider who signs an affidavit under Subsection (3)(b) shall:
(a) if none of the respondents is a physician or an osteopathic physician, hold a current unrestricted license issued by the appropriate licensing authority of Utah or another state in the same specialty or of the same class of license as the respondents; or
(b) if at least one of the respondents is a physician or an osteopathic physician, hold a current unrestricted license issued by the appropriate licensing authority of Utah or another state to practice medicine in all its branches.
(6) A claimant's attorney or claimant may obtain up to a 60-day extension to file the affidavit of merit if:
(a) the claimant or the claimant's attorney submits a signed affidavit for extension with notice to the division attesting to the fact that the claimant is unable to submit an affidavit of merit as required by this section because:
(i) a statute of limitations would impair the action; and
(ii) the affidavit of merit could not be obtained before the expiration of the statute of limitations; and
(b) the claimant or claimant's attorney submits the affidavit for extension to each named respondent in accordance with Subsection 78B-3-412(3) no later than 60 days after the date specified in Subsection (1)(a)(i).
(7)
(a) A claimant or claimant's attorney who submits allegations in an affidavit of merit that are found to be without reasonable cause and untrue, based on information available to the plaintiff at the time the affidavit was submitted to the division, is liable to the defendant for the payment of reasonable expenses and reasonable attorney fees actually incurred by the defendant or the defendant's insurer.
(b) An affidavit of merit is not admissible, and cannot be used for any purpose, in a subsequent lawsuit based on the claim that is the subject of the affidavit, except for the purpose of establishing the right to recovery under Subsection (7)(c).
(c) A court, or arbitrator under Section 78B-3-421, may award costs and attorney fees under Subsection (7)(a) if the defendant files a motion for costs and attorney fees within 60 days of the judgment or dismissal of the action in favor of the defendant. The person making a motion for attorney fees and costs may depose and examine the health care provider who prepared the affidavit of merit under Subsection (3)(b).
(8) For each request for prelitigation panel review under Subsection 78B-3-416(2), the division shall compile the following information:
(a) whether the cause of action arose on or after July 1, 2010;
(b) the number of respondents named in the request; and
(c) for each respondent named in the request:
(i) the respondent's license class;
(ii) if the respondent has a professional specialty, the respondent's professional specialty;
(iii) if the division does not issue a certificate of compliance at the conclusion of the prelitigation process, the reason a certificate was not issued;
(iv) if the division issues a certificate of compliance, the reason the certificate of compliance was issued;
(v) if an affidavit of merit was filed by the claimant, for each health care provider who submitted an affidavit under Subsection (3)(b):
(A) the health care provider's license class and professional specialty; and
(B) whether the health care provider meets the requirements of Subsection 78B-3-416(5)(b); and
(vi) whether the claimant filed an action in court against the respondent.
(9) The division may require the following persons to submit the information to the division necessary for the division to comply with Subsection (8):
(a) a claimant;
(b) a respondent;
(c) a health care provider who submits an affidavit under Subsection (3)(b); and
(d) a medical liability pre-litigation panel.
Amended by Chapter 503, 2025 General Session
Utah Code § 78B-3-423.1 Division collection of panel review data.
78B-3-423.1. Division collection of panel review data.
(1) The division shall:
(a) compile a written report summarizing the division's administration of panel reviews, including at least the information described in Subsection (2);
(b) in compiling the written report under Subsection (1)(a), review information obtained from the court's Xchange database, made available to the division without cost by the Administrative Office of the Courts; and
(c) provide the written report under Subsection (1)(a) to the Judiciary Interim Committee no later than November 1 of each year.
(2) The report under Subsection (1) shall detail, for the period beginning on the day after the day through which the last report covered, and ending on the day through which data is available:
(a) the number of panel reviews the division convened, by respective license class;
(b) the number of cases for which a claimant filed a complaint in court;
(c) the number of cases in which a provider and claimant agreed to forgo a panel review;
(d) the number of cases in which a provider and claimant agreed to use a panel review as binding arbitration;
(e) for each panel review the division convened, the prelitigation review panel's determinations regarding merit under Subsection 78B-3-418(2)(a);
(f) the number of cases that were settled after a panel review and:
(i) before a complaint alleging a malpractice action against a health care provider in court is filed; and
(ii) after a complaint alleging a malpractice action against a health care provider in court is filed; and
(g) for cases alleging a malpractice action against a health care provider that were resolved, including by adjudication or stipulated settlement:
(i) the amount of damages sought as compared to the amount of damages awarded or otherwise obtained, if known, including by the following categories:
(A) noneconomic;
(B) economic; and
(C) punitive; and
(ii) the number of cases that were dismissed with prejudice and without an award of damages or any other economic relief to the claimant.
Enacted by Chapter 503, 2025 General Session
Utah Code § 78B-3-424 Limitation of liability for ostensible agent.
78B-3-424. Limitation of liability for ostensible agent.
(1) For purposes of this section:
(a) "Agent" means a person who is an "employee," "worker," or "operative," as defined in Section 34A-2-104, of a health care provider.
(b) "Ostensible agent" means a person:
(i) who is not an agent of the health care provider; and
(ii) who the plaintiff reasonably believes is an agent of the health care provider because the health care provider intentionally, or as a result of a lack of ordinary care, caused the plaintiff to believe that the person was an agent of the health care provider.
(2) A health care provider named as a defendant in a medical malpractice action is not liable for the acts or omissions of an ostensible agent if:
(a) the ostensible agent has privileges with the health care provider, but is not an agent of the health care provider;
(b) the health care provider has, by policy or practice, ensured that a person providing professional services has insurance of a type and amount required, if any is required, by the rules or regulations as established in:
(i) medical staff by-laws for a health care facility; or
(ii) other health care facility contracts, indemnification agreements, rules or regulations;
(c) the insurance required in Subsection (2)(b) is in effect at the time of the alleged act or omission of the ostensible agent; and
(d) there is a claim of agency or ostensible agency in a plaintiff's notice of intent to commence an action, the health care provider, within 60 days of the service of the notice of intent to commence an action, lists each person identified by the plaintiff who the provider claims is not an agent or ostensible agent of the provider.
(3) This section applies to a cause of action that arises on or after July 1, 2010.
Enacted by Chapter 97, 2010 General Session
Utah Code § 78B-3-425 Prohibition on cause of action for negligent credentialing.
78B-3-425. Prohibition on cause of action for negligent credentialing.
It is the policy of this state that the question of negligent credentialing, as applied to health care providers in malpractice suits, is not recognized as a cause of action.
Enacted by Chapter 430, 2011 General Session
Utah Code § 78B-3-426 Nonpatient plaintiffs.
78B-3-426. Nonpatient plaintiffs.
(1) For purposes of this section, a nonpatient plaintiff does not include a patient, as defined in Section 78B-3-403.
(2) This section does not apply to a health care malpractice action brought or seeking recovery under Section 78B-3-106, 78B-3-107, 78B-3-502, or 81-3-111.
(3) To establish a malpractice action against a health care provider, a nonpatient plaintiff shall be required to show that:
(a) the health care provider owes a duty to the nonpatient plaintiff;
(b) the nonpatient plaintiff suffered a foreseeable injury;
(c) the nonpatient plaintiff's injury was proximately caused by an act or omission of the health care provider; and
(d) the health care provider's act or omission was conduct that manifests a knowing and reckless indifference toward, and a disregard of, the injury suffered by the nonpatient plaintiff.
Amended by Chapter 366, 2024 General Session
Utah Code § 78B-3-427 Transgender procedures upon a minor -- Right of action -- Informed consent requirements -- Statute of limitations.
78B-3-427. Transgender procedures upon a minor -- Right of action -- Informed consent requirements -- Statute of limitations.
(1) As used in this section:
(a) "Hormonal transgender treatment" means the same as that term is defined in Section 58-1-603.
(b) "Minor" means the same as that term is defined in Section 58-1-603.
(2)
(a) Notwithstanding any other provision of law, a malpractice action against a health care provider may be brought against a health care provider for damages arising from:
(i) providing a hormonal transgender treatment to a minor without complying with the requirements described in Section 58-1-603;
(ii) negligence in providing a hormonal transgender treatment to a minor; or
(iii) providing a treatment or procedure described in Subsection (2)(b)(ii) to a minor without the minor's consent including if the minor disaffirms consent under Subsection (3).
(3)
(a) Notwithstanding any other provision of law, an individual who gave informed consent as a minor or for whom consent was given under Section 78B-3-406, may disaffirm the consent if:
(i) the treatment at issue began after January 28, 2023;
(ii) the consent was provided for any of the following:
(A) a hormonal transgender treatment;
(B) a primary sex characteristic surgical procedure as defined in Section 58-67-102; or
(C) a secondary sex characteristic surgical procedure as defined in Section 58-67-102;
(iii) under the totality of the circumstances, a health care provider would have reason to believe that the minor, or a similarly situated minor, could later regret having given consent;
(iv) the individual suffered a permanent physical injury; and
(v) the consent is disaffirmed in writing before the individual reaches the age of 25 years old.
(b) A disaffirmation of consent under this Subsection (3) relates back to the day the original consent was given.
(4) Notwithstanding any other provision of law, a malpractice action against a health care provider described in Subsection (2)(a) may be brought before the patient is 25 years old if the treatment at issue in the malpractice action began, occurred, or continued on or after January 28, 2023.
(5) Sections 78B-3-404 and 78B-3-406 do not apply to an action described in this section.
Revisor instructions Chapter 2, 2023 General Session
Enacted by Chapter 2, 2023 General Session
Utah Code § 78B-3-428 Breach of duty for deviating from established practices.
78B-3-428. Breach of duty for deviating from established practices.
(1) A health care provider does not breach the duty of care the health care provider owes to a patient:
(a) to the extent any alleged breach is based on actions related to the health care provider's deviation from medical norms or established practices; and
(b) if the conditions described in Subsection 58-1-501(5) have been met.
(2) A health care facility is not vicariously liable for an action or claim described in Subsection (1)(a) if the conditions described in Subsection 58-1-501(5) have been met.
Enacted by Chapter 321, 2023 General Session
Source: Utah Office of Legislative Research and General Counsel (le.utah.gov)URL: https://le.utah.gov/xcode/Title78B/Chapter3/78B-3-P4.html?v=C78B-3-P4_1800010118000101Fetched: 10/26/2026