Article: Medical Malpractice Prelitigation Panel Hearings: a Helpful Step in the Adr Process
| Publication year | 2023 |
| Pages | 43 |
March, 2023
by Brian Craig
No one can ignore the rising cost of health care and health insurance premiums. To help control the cost of health care and medical malpractice insurance, the Utah Legislature enacted the Utah Health Care Malpractice Act, found in Utah Code Sections 78B-3-401 to -426. While not binding, the prelitigation panel review hearing with the Utah Division of Professional Licensing (DOPL) serves a useful purpose in medical malpractice cases in Utah. At least seventeen states have created similar medical review panels, also known as screening panels, in response to spiraling health care costs. See Anna Karas, Note, The Constitutional Strength of Indiana's Medical Review Panel Process: How to Overcome the Inevitable Challenges, 18 Ind. Health L. Rev. 189, 189 (2021). These panel review hearings represent an alternative form of dispute resolution (ADR) in helping the parties evaluate the merits of each case.
While decisions in prelitigation panel review hearings are not binding after the Utah Supreme Court decision in Vega v. Jordan Valley Medical Center, LP, 2019 UT 35, 449 P.3d 31, the hearings still serve a vital role. The primary purpose is to expedite early evaluation and settlement, or other appropriate disposition, of medical malpractice claims. In addition, the prelitigation panel functions to guide and solidify claims before they reach court.
The Notice of Intent
Counsel for plaintiffs, or petitioners as they are referred to in prelitigation panel hearings, first draft the notice of intent. The notice of intent is akin to the complaint filed in district court. Utah Code Section 78B-3-412(2) requires that the notice include: (1) a general statement of the nature of the claim; (2) the persons involved; (3) the date, time, and place of the occurrence; (4) the circumstances surrounding the claim; (5) specific allegations of misconduct on the part of the prospective defendant; and (6) the nature of the alleged injuries and other damages sustained. Ideally, the notice of intent includes a chronological description of the petitioner's treatment and the specific allegations concerning the breach in the standard of care. A well-drafted notice of intent serves as a useful guide for panel members and respondents in knowing the specific allegations and claims. The notice of intent also helps DOPL staff determine what types of specialists are needed on the panel.
Panel Composition
Each panel consists of: (1) an attorney who serves as chairperson of the panel; (2) a lay member who is not a health care provider, hospital employee, or attorney; (3) a licensed health care provider practicing in each specialty in which each respondent health care provider practices; and (4) a hospital...
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