July 20, 2019

In its opinion filed on July 19, 2019, the Supreme Court of the State of Utah (“Utah Supreme Court”) ruled that the requirement in the Utah Health Care Malpractice Act (“Act”) that a Utah medical malpractice claimant obtain a certificate of compliance from the Division of Occupational and Professional Licensing (DOPL) violates Article VIII, section I of the Utah Constitution—the judicial power provision—by allowing DOPL to exercise the core judicial function of ordering the final disposition of claims without judicial review. “Accordingly, we find the offending provisions in the Act unconstitutional, reverse the district court’s grant of appellees’ motion to dismiss, and remand this case for a determination on the merits.”

The Underlying Facts

In 2014, Gustavo Vega (Mr. Vega) underwent a routine procedure to have his gallbladder removed. After the conclusion of the surgery, Mr. Vega did not wake up. A CT scan revealed low lung volumes. Neurologists diagnosed Mr. Vega with an anoxic brain injury that occurred during the surgery or immediately afterwards. Mr. Vega was 44-years-old when he died a week after the surgery.

Following his death, Mr. Vega’s wife prepared to file a Utah medical malpractice action under the Utah Health Care Malpractice Act, UTAH CODE § 78B-3-401 to -426. A Utah medical malpractice action against a health care provider may not be initiated unless and until the plaintiff gives the prospective defendant or his executor or successor, at least 90 days’ prior notice of intent to commence an action. Once a plaintiff files a notice of intent, DOPL then has 180 days to complete a preligitation panel review of the plaintiff’s claims.

Pursuant to the Act, Mrs. Vega filed her notice of intent to commence a medical malpractice action. Parties that file this notice are then required to present their case to a prelitigation panel that consists of a doctor, a lawyer, and a layperson. The prelitigation panel proceedings are informal, nonbinding, and are compulsory as a condition precedent to commencing litigation. The panel must determine whether each claim against each health care provider has merit or has no merit. If the panel finds that a plaintiff’s claim has merit, DOPL issues a certificate of compliance for each meritorious claim and the plaintiff can then file the case in district court.

If the panel decides that a plaintiff’s claim lacks merit, the Act permits the plaintiff to nonetheless compel DOPL to issue a certificate of compliance by obtaining an affidavit of merit from a health care provider. DOPL will issue a certificate of compliance for a claim if the affidavit of merit includes a statement that the plaintiff or the plaintiff’s attorney 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.

Mrs. Vega retained a medical expert who was able to certify that he believed there were reasonable grounds to believe there was a breach in the standard of care that proximately caused the death of Mr. Vega, but he could not provide the details and reasoning for his opinion based on the medical record due to the inadequacy of the medical records provided to Mrs. Vega. DOPL determined that Mrs. Vega’s affidavit was inadequate and asked Mrs. Vega to file an amended affidavit. Because Mrs. Vega did not provide an amended affidavit, and so did not comply with DOPL’s requirements, Mrs. Vega did not obtain a certificate of compliance.

The trial court cited the inadequacy of prelitigation discovery and the lack of clear physician notes in finding that it was impossible for Mrs. Vega to comply with DOPL’s requirements. The trial court further determined that dismissing the case without prejudice to allow Mrs. Vega to seek the opinion of another expert would be futile. Accordingly, the trial court granted the defendants’ motion to dismiss with prejudice. The plaintiff appealed.

Utah Supreme Court Opinion

Article V, section I of the Utah Constitution states: “The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.”

Article VIII, section I of the Utah Constitution states in relevant part: “The judicial power of the state shall be vested in a Supreme Court, in a trial court of general jurisdiction known as the district court, and in such other courts as the Legislature by statute may establish.”

The Utah Supreme Court stated, “While Article V regulates and guides the apportionment of authority and function between the branches of government, the core judicial power vested in the courts by Article VIII is always retained by the judiciary—regardless of whether the party attempting to exercise a core judicial function belongs to another branch of the government.”

The Utah Supreme Court stated that the core judicial function of courts includes the power to hear and determine controversies between adverse parties and questions in litigation. However, core judicial functions do not include functions that are generally designed to assist courts, such as conducting fact finding hearings, holding pretrial conferences, and making recommendations to judges.

The Utah Supreme Court stated: “There is a clear line between permissible statutory prescriptions for pretrial conferencing or litigation assistance, and full-on encroachments of the judicial power. The legislature can establish pretrial panels, commissioners, and all kinds of assistance for a judicial determination without running afoul of Article VIII. However, the 2010 enactments and amendments to the Malpractice Act, which require dismissal of an action absent a certificate of compliance from DOPL, exceed any offer of mere assistance to the courts and instead ultimately represent an exercise of core judicial functions … the framework created by the 2010 enactments and amendments, specifically Utah Code section 78B-3-412(1)(b)—which makes the certificate of compliance mandatory in order to file a medical malpractice case in court—and Utah Code section 78B-3-423(7)—which mandates that the courts dismiss all actions in which a certificate of compliance has not been issued—function to give DOPL the power to finally dispose of claims at the direct expense of the judiciary … [i]f there is no review or appeal to the courts, then the ruling of the panel is not a recommendation or an opinion—it is an authoritative and final ruling on whether a claim has merit. It is a total disposition of a case, outside of the courts, without any standard judicial process or the consent of the parties … the rejection of [the plaintiff’s expert’s] affidavit was an exercise of a core judicial function by DOPL … even if [the] affidavit was indeed inadequate, the real issue is who gets to make that final determination: DOPL … DOPL shall issue certification only if, in its own determination, the plaintiff complied. And its determination is not subject to judicial review or appeal. This violates our grant of judicial power under Article VIII.”

The Utah Supreme Court held: “we conclude that Utah Code section 78B3-412(1)(b), which requires a certificate of compliance from DOPL in order for a plaintiff, like Ms. Vega, to initiate a malpractice action against a health care provider, is unconstitutional. Accordingly, those sections of the Malpractice Act that require a plaintiff to obtain a certificate of compliance prior to filing a lawsuit in the district court must be stricken from the Act. Additionally, we declare the language in Utah Code section 78B-3-423(7), which mandates a dismissal of any malpractice action filed without a certificate of compliance, to be unconstitutional. Because section 423 cannot stand alone or serve a purpose without section 423(7), we find the entirety of section 423 and all language throughout the act that refers to affidavits of merit to be unconstitutional … Because the Malpractice Act remains operable without section 412(1)(b) and section 423(7), we leave intact and find constitutional the rest of the amended statute. We believe that the Malpractice Act as it existed prior to its amendment in 2010 may continue to serve a purpose once Utah Code section 78B-3-412(1)(b) and Utah Code section 78B-3-423(7) have been excised. However, all of section 423—the section that outlines the procedures for obtaining an affidavit of merit—and all language throughout the amended act that refers to affidavits of merit must also be found unconstitutional … Once section 423(7) is removed there is no longer any reason why a claimant would pursue an affidavit of merit. A panel decision finding that a claim is without merit will not stop a plaintiff from filing in court, and so all procedures for securing a certificate of compliance via an affidavit of merit will never be used. This portion therefore serves no further purpose.”

Vega v. Jordan Valley Medical Center, LP, 2019 UT 35.

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