78B-3-416 - Division to provide panel -- Exemption -- Procedures -- Statute of limitations tolled -- Composition of panel -- Expenses -- Division authorized to set license fees.
78B-3-416. Division to provide panel -- Exemption -- Procedures -- Statute oflimitations tolled -- Composition of panel -- Expenses -- Division authorized to set licensefees.
(1) (a) The division shall provide a hearing panel in alleged medical liability casesagainst health care providers as defined in Section 78B-3-403, except dentists.
(b) (i) The division shall establish procedures for prelitigation consideration of medicalliability claims for damages arising out of the provision of or alleged failure to provide healthcare.
(ii) The division may establish rules necessary to administer the process and proceduresrelated to prelitigation hearings and the conduct of prelitigation hearings in accordance withSections 78B-3-416 through 78B-3-420.
(c) The proceedings are informal, nonbinding, and are not subject to Title 63G, Chapter4, Administrative Procedures Act, but are compulsory as a condition precedent to commencinglitigation.
(d) Proceedings conducted under authority of this section are confidential, privileged,and immune from civil process.
(2) (a) The party initiating a medical liability action shall file a request for prelitigationpanel review with the division within 60 days after the service of a statutory notice of intent tocommence action under Section 78B-3-412.
(b) The request shall include a copy of the notice of intent to commence action. Therequest shall be mailed to all health care providers named in the notice and request.
(3) (a) The filing of a request for prelitigation panel review under this section tolls theapplicable statute of limitations until the later of:
(i) 60 days following the division's issuance of:
(A) an opinion by the prelitigation panel; or
(B) a certificate of compliance under Section 78B-3-418; or
(ii) the expiration of the time for holding a hearing under Subsection (3)(b)(ii).
(b) The division shall:
(i) send any opinion issued by the panel to all parties by regular mail; and
(ii) complete a prelitigation hearing 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 the prelitigation hearing has not been completed within the time limits establishedin Subsection (3)(b)(ii), the claimant shall:
(i) file an affidavit of merit under the provisions of Section 78B-3-423; or
(ii) file an affidavit with the division within 180 days of the request for pre-litigationreview, in accordance with Subsection (3)(d), alleging that the respondent has failed toreasonably cooperate in scheduling the hearing.
(d) If the claimant files an affidavit under Subsection (3)(c)(ii):
(i) within 15 days of the filing of the affidavit under Subsection (3)(c)(ii), the divisionshall determine whether either the respondent or the claimant failed to reasonably cooperate inthe scheduling of a pre-litigation hearing; and
(ii) (A) if the determination is that the respondent failed to reasonably cooperate in thescheduling of a hearing, and the claimant did not fail to reasonably cooperate, the division shall,issue a certificate of compliance for the claimant in accordance with Section 78B-3-418; or
(B) if the division makes a determination other than the determination in Subsection(3)(d)(ii)(A), the claimant shall file an affidavit of merit in accordance with Section 78B-3-423,within 30 days of the determination of the division under this Subsection (3).
(e) (i) The claimant and any respondent may agree by written stipulation that no usefulpurpose would be served by convening a prelitigation panel under this section.
(ii) When the stipulation is filed with the division, the division shall within 10 days afterreceipt issue a certificate of compliance under Section 78B-3-418, as it concerns the stipulatingrespondent, and stating that the claimant has complied with all conditions precedent to thecommencement of litigation regarding the claim.
(4) The division shall provide for and appoint an appropriate panel or panels to hearcomplaints of medical liability and damages, made by or on behalf of any patient who is analleged victim of medical liability. The panels are composed of:
(a) one member who is a resident lawyer currently licensed and in good standing topractice law in this state and who shall serve as chairman of the panel, who is appointed by thedivision from among qualified individuals who have registered with the division indicating awillingness to serve as panel members, and a willingness to comply with the rules of professionalconduct governing lawyers in the state, and who has completed division training regardingconduct of panel hearings;
(b) (i) one member who is a licensed health care provider listed under Section78B-3-403, who is practicing and knowledgeable in the same specialty as the proposeddefendant, and who is appointed by the division in accordance with Subsection (5); or
(ii) in claims against only hospitals or their employees, one member who is an individualcurrently serving in a hospital administration position directly related to hospital operations orconduct that includes responsibility for the area of practice that is the subject of the liabilityclaim, and who is appointed by the division; and
(c) a lay panelist who is not a lawyer, doctor, hospital employee, or other health careprovider, and who is a responsible citizen of the state, selected and appointed by the divisionfrom among individuals who have completed division training with respect to panel hearings.
(5) (a) Each person listed as a health care provider in Section 78B-3-403 and practicingunder a license issued by the state, is obligated as a condition of holding that license toparticipate as a member of a medical liability prelitigation panel at reasonable times, places, andintervals, upon issuance, with advance notice given in a reasonable time frame, by the division ofan Order to Participate as a Medical Liability Prelitigation Panel Member.
(b) A licensee may be excused from appearance and participation as a panel memberupon the division finding participation by the licensee will create an unreasonable burden orhardship upon the licensee.
(c) A licensee whom the division finds failed to appear and participate as a panelmember when so ordered, without adequate explanation or justification and without beingexcused for cause by the division, may be assessed an administrative fine not to exceed $5,000.
(d) A licensee whom the division finds intentionally or repeatedly failed to appear andparticipate as a panel member when so ordered, without adequate explanation or justification andwithout being excused for cause by the division, may be assessed an administrative fine not toexceed $5,000, and is guilty of unprofessional conduct.
(e) All fines collected under Subsections (5)(c) and (d) shall be deposited in thePhysicians Education Fund created in Section 58-67a-1.
(6) Each person selected as a panel member shall certify, under oath, that he has no biasor conflict of interest with respect to any matter under consideration.
(7) A member of the prelitigation hearing panel may not receive compensation orbenefits for the member's service, but may receive per diem and travel expenses in accordancewith:
(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 and63A-3-107.
(8) (a) In addition to the actual cost of administering the licensure of health careproviders, the division may set license fees of health care providers within the limits establishedby law equal to their proportionate costs of administering prelitigation panels.
(b) The claimant bears none of the costs of administering the prelitigation panel exceptunder Section 78B-3-420.
Amended by Chapter 97, 2010 General Session
Amended by Chapter 286, 2010 General Session