Medical Malpractice in Utah

Patients trust medical professionals to provide adequate care. This includes diagnosing and treating various medical conditions accurately. Most of the time, health care providers rise to the challenge and help their patients lead healthy lives. Occasionally, however, medical professionals end up harming their patients through negligence or fraudulent acts. When that happens, patients can file medical malpractice suits in Salt Lake City and the rest of Utah. Malpractice suits allow patients to collect damages that make them whole again after undergoing harmful medical procedures.

What Is Considered Medical Malpractice?

Medical malpractice occurs when a health care provider causes harm to a patient as a result of carelessness, negligence, mistakes, or fraud. Malpractice can include:

• Failing to diagnose a medical problem or illness
• Misdiagnosing a medical problem or illness
• Medication, surgical, and anesthesia errors
• Birth injuries

Malpractice can lead to significant injuries as well as wrongful death. Wrongful death is considered malpractice in the state.

To be considered malpractice, the provider must cause harm to a patient. Simply being negligent is not enough if it does not cause harm. For example, if a physician misdiagnoses a patient, but the patient does not suffer any harm, he or she does not have a malpractice claim. However, if the misdiagnosis leads to delayed treatments that harm the patient, he or she can make a medical malpractice claim.

Who Can Be Sued for Medical Malpractice?

Utah has a Good Samaritan law on the books. This law protects people who provide emergency care at or near the scene of an emergency, as long as the provider did not cause the emergency and is not grossly negligent in providing care. For example, if someone renders care to an individual at the side of the road after a car accident, he or she is protected from liability.

While the law protects some medical providers in case of emergencies, most health care professionals can be held liable for medical malpractice in Utah. They include:

• Physicians
• Specialists
• Nurse practitioners
• Dentists
• Orthodontists
• Ophthalmologists
• Psychiatrists

These are just some of the practice areas that are subject to malpractice suits. Most providers can be held liable, but a malpractice attorney can help those who are unsure if they can bring suit against a healthcare provider.

Statute of Limitations

The statute of limitations refers to the time frame that patients have to file medical malpractice cases in Utah. Injured parties have two years to file a claim after discovering any injury. The two-year period also begins if an injury has yet to be discovered but should have been. This time limit is not to exceed four years from the incident.

For example, if someone is injured by a medical provider and discovers it three years later, he or she only has one year to file the claim. If the injured party waits two years, he or she then passes the four-year limit and can no longer file suit or collect damages.

The statute of limitations is extended in two cases. Patients can file a claim within a year of discovering a foreign object in their bodies or after realizing their provider has fraudulently hidden the negligence.  As soon as the discovery is made, the countdown begins, and patients must take quick action to avoid running out of time.

Elements of a Medical Malpractice Case

Successful medical malpractice cases contain four elements. Each element must be present to move forward with the case.

Doctor-patient Relationship

A doctor-patient relationship must have been established to sue for malpractice. Doctors do not have a duty of care to people who are not their patients. For instance, assume someone is friends with a physician but not his or her patient. The person asks the doctor for medical advice, which the doctor provides. This does not constitute a relationship. The person must be the doctor’s patient to file a malpractice case.

Failure to Meet the Standard of Care

Health care providers have to meet the medical standard of care. Failure to do so is a breach of care. If a patient presents signs of cancer, and the doctor fails to order the necessary tests; this is a breach of the standard of care. It is reasonable to expect the doctor to order the tests and correctly diagnose the disease.

Injury Due to Medical Negligence

The breach of the standard of care must lead to harm. If the doctor failed to provide proper care, but it did not harm the patient; the person does not have a case. For example, if the doctor failed to order tests, but the illness was later diagnosed, treated, and the patient did not suffer any harm; the person does not have a case. On the other hand, if the negligence caused the illness to become worse and reduce the person’s quality of life, that is cause for a case.

Damages

Injured parties must also suffer losses due to negligence. Damages come in various forms and include medical costs, injuries, lost wages, and a reduction in the quality of life. The malpractice suit and judgment can help make the patient whole again.

Damages Available in Medical Malpractice Suits

Injured parties can sue for economic and non-economic damages in Utah. Some litigants sue for damages in a single category, while others sue for all of the damages. It depends on the specific injury case.

Medical Bills

Many people who suffer injuries due to negligence have large medical bills. Patients can sue to recover the cost of these bills. Along with the bills they have already received, they can sue to receive damages for future medical care. This covers personal care the patient might require due to the extent of the injuries.

Loss of Wages

People who suffer serious injuries due to malpractice often lose their wages, as well. Along with suing for lost wages, injured parties can also recover damages for the loss of future income as well as the loss of earning capacity. This occurs when injured parties are not able to earn as much money as they were before the injury.

Legal Fees

People can also sue to recover the cost of their legal fees. This covers everything, from the attorney and expert witness fees to the money spent on making copies and mailing documents. Attorneys compile all of the fees and include them in the lawsuit.

Pain and Suffering

Pain and suffering is non-economic damage. People can receive damages for pain and suffering due to:

• Physical and mental pain and anguish
• Permanent disabilities
• Scarring
• Loss of enjoyment of life
• Loss of consortium

Calculating the amount of pain and suffering damages owed to a litigant takes special expertise. Skilled attorneys know how to maximize the amount of damages clients receive for pain and suffering.

Recovery Caps for Damages for a Medical Malpractice Lawsuit

Utah has a law to ensure that patients are not compensated twice for the same bills. People cannot recover money for medical bills that have been covered by health insurance or other sources. They also cannot get reimbursed for lost wages if they have received wage compensation from their employer or another source.

Entities that provide collateral sources are required to provide the defendant with a written notice. This notice must be received at least 30 days before the case’s settlement.

Patients can be reimbursed for economic damages that were not previously covered. For example, if a patient has lost wages and paid for medical bills out of his or her pocket, this can be awarded in damages. There is not a cap to the amount of economic damages that can be recovered, but proper documentation must be provided.

Injured parties also might be eligible to recover non-economic damages, but these damages have a cap. Non-economic damages refer to damages that are not tangible, such as pain and suffering and loss of enjoyment of life. The state of Utah caps these damages at $450,000 for all cases that occurred after May 15, 2010. The state had adjusted the damage cap for inflation over the years and will likely adjust for inflation again in the future.

Utah also caps the amount of attorneys’ fees recovered, although the cap is not a dollar amount. It cannot exceed 33.3 percent of the total damages recovered.

Modified Comparative Negligence

In some cases, the health care provider is not completely at fault for the injury. Patients’ actions occasionally contribute to the injury. A patient who engages in activities that make the condition worse is partially at fault. Utah has a comparative negligence law that allows patients to sue for damages, although the amount awarded is reduced based on the degree of fault.

States use different versions of comparative negligence. In Utah, the rule sets a 50 percent bar. That means that patients can sue for damages if they are 49 percent or less responsible for their injuries.

The court assigns a percentage of blame to the claimant and defendant. If it’s 50 percent each, the case is dismissed. If the patient is 49 percent or less at fault, he or she can continue with the suit. While some patients are assigned a percentage of the blame, many are not. Many patients receive 100 percent of the damages awarded.

Establishing Fault for Multiple Defendants

The degree of fault does not just apply to the claimant and the defendant. There might be multiple defendants in a case. Then the court must appoint a percentage of fault to each defendant. In most states, the court has two options for assigning fault.

First, the court can use individual comparison when determining fault. The court assigns fault to the plaintiff (if applicable) and each defendant. The claimant can only recover damages from the defendant with a fault that is greater than his or her own. For example, assume a plaintiff is deemed to be 30 percent at fault. Two defendants are determined to be 20 percent at fault. Since their fault is less than the fault of the plaintiff, they do not have to pay damages.

Second, the court can assign fault using the combined comparison approach. The defendants are lumped together and assigned a percentage of fault as a whole. The plaintiff is also assigned a percentage of fault, if applicable. As long as the defendant is less than 50 percent at fault, he or she can recover damages from all parties.

The combined comparison method is the preferable one for plaintiffs in medical malpractice cases. At one time, Utah courts could choose either method. However, the Utah Supreme Court determined that combined comparison is the law of the land. Now, this is the only option afforded to the courts due to the ruling by the Utah Supreme Court.

I’m Sorry Law

Utah has an “I’m Sorry” law on its books. Health care providers have the right to apologize or offer condolences when a procedure has an unanticipated outcome without those statements being used against them. However, if the health care provider admits fault, he or she is not protected under the “I’m Sorry” law.

For example, a medical provider can state, “I’m sorry that the bone did not heal in the way I anticipated.” That statement cannot be used in court. However, if the provider stated, “I made a mistake when I tried to set your bone,” the statement can be used in court.

While an apology cannot be used in court, defendants are urged to provide such statements to their attorneys. While an apology does not admit guilt, it does indicate that something went wrong during the treatment. Attorneys realize that such an apology is a reason to investigate further to determine the cause of the injuries.

Settling Utah Medical Malpractice Claims

Many litigants choose to settle claims instead of going to court. Parties can choose to use the pre-litigation panel for binding arbitration. Some injured parties are forced into arbitration after signing an arbitration agreement from a health care provider before receiving care. This agreement states that patients must go to arbitration to settle malpractice claims instead of taking the case to court. Signing such a claim is not required, but if someone does sign the claim, he or she must use arbitration. Others choose arbitration willingly after filing a claim.

Panelists do not receive compensation if they are only determining the merit of the case. However, if they are part of a binding arbitration process, they must be compensated for their work.

Taking the Case to Court

If patients do not enter into binding arbitration or settle out of court, the case will go to trial. There are several steps involved in taking a case to trial. It is critical to use a malpractice attorney during this process. The attorney conducts the necessary investigation and prepares for the case during each step. This greatly increases the likelihood of achieving the desired outcome. Due to the nature of the attorney-client relationship, the client can expect full confidentially during this process.

Notice of Intent to Commence Action

Injured parties cannot simply file suit for medical malpractice in the state of Utah. They must first notify the health care provider of their intent to file a claim. People must file the Notice of Intent to Commence Action a minimum of 90 days before filing the lawsuit.

After injured parties file the Notice of Intent, they have 60 days to contact the Utah Division of Occupational and Professional Licensing to request a pre-litigation panel review. The panel must review the claim before it can be filed with the court. Three parties sit on the panel. The panel has a licensed medical professional and a licensed lawyer. The third person is a layperson. This person cannot be a lawyer or a medical professional. This is much like jury duty, with panel members receiving a notice to participate.

The panel determines if the claim has merit and can go to court. Other states require that claimants use expert witnesses to validate claims. The panel itself is the expert witness. It validates the claim and determines if it has merit.

Affidavit of Merit

If the pretrial panel determines the case has merit, it will provide the claimant with an affidavit of merit. This affidavit is signed by a licensed healthcare professional and indicates that the claim should move forward. The claimant must submit the affidavit to the Division of Occupational and Professional Licensing to receive a certificate of compliance. Then the malpractice attorney will send a notice to the defendant. The notice covers:

• Statement of the claim
• Injured parties
• Date and time of the incident
• Location of the incident
• Allegations and circumstances
• Injuries
• Damages

While the notice includes the damages that the claimant will seek, it does not include the amount of the damages.

Discovery Process

After the defendant and courts have been notified of the intent to sue, the discovery process will begin. The discovery process allows both sides to gather the necessary information to fight the case in court.

Discovery typically begins with depositions of all parties and witnesses. Lawyers depose defendants, plaintiffs, and witnesses. The deposed party is under oath and required to answer all questions honestly. The answers can be used in the trial for evidence. It is critical to have a Utah medical malpractice attorney present during the deposition. Lawyers can object to questions and council their clients before answering. Lawyers will also tell clients when it is in their best interest to not answer a question. This protects plaintiffs before going to trial.

Written interrogatories are similar to depositions in the sense that they are used to lock down answers before going to trial. The answers to these questions clarify various matters. Lawyers often use written interrogatories during the discovery process.

Requests for admissions are also used during discovery. These requests require the respondent to answer with a yes or a no. The lawyer will write out certain facts about the case, and the other side will need to confirm or deny those facts. The answers give lawyers a clearer understanding of the other side’s strategy during the case. After a malpractice attorney sees the answers, he or she can fine-tune the prosecution strategy.

Both sides also trade documents during the discovery stage. Medical records are the most important of those documents. The other side will want to see the medical documents to review the personal injury claim.

Pretrial Litigation

Both parties have another chance to settle before going to trial. After discovery, both sides will have a better idea of what to expect during the trial and how much the claimant is owed in damages. Some people prefer to settle out of court so that they can get their money quickly. However, if the defendant does agree to a fair settlement, it is wise to move forward in court.

Going to Trial

If the parties cannot reach a settlement, the case will go to court. The process begins with jury selection if a jury trial is chosen. The medical malpractice attorney and opposing counsel will question potential jurors. Finally, the jury is determined, and the case begins.

Both attorneys will begin with opening statements that outline their cases. Then the medical malpractice lawyer will present his or her case. The attorney will call witnesses and present evidence to prove the claim. The plaintiff will likely use expert witness testimony to prove the case. To be considered an expert witness, the person must have the skill, experience, training, knowledge, or education to provide an expert opinion on the claim. The court decides if someone is qualified to be an expert witness.

The opposing attorney can cross-examine the witnesses on the stand. After all the witnesses are called, the plaintiff will rest, and the defense will begin. The defense attorney will call witnesses and present evidence to refute the claim. The plaintiff’s attorney can also cross-examine witnesses. The defense will likely present expert witnesses to counter the plaintiff’s witnesses. Utah law prevents “junk science,” which protects the plaintiff. The witnesses must provide testimony based on data and facts.

After both sides present their cases, the deliberation process will begin. If it is a jury trial, the jurors will deliberate. If it’s a bench trial, the judge will have the sole responsibility of choosing the outcome. After deliberations, the judge or jury will announce the findings.

Appealing the Case

Most cases are not finished after the verdict is reached. The losing party has the option to file an appeal. There is generally a 30-day window after losing a case to file an appeal.

Choosing an Attorney for a Medical Malpractice Claim

Medical malpractice claims are complex, so it’s advised to use an attorney. A medical malpractice lawyer will explain the complex laws, obtain medical records and evidence, and locate experts to help with the case. The attorney will also file the paperwork and help the claimant to settle the case or go to court.

Victims can begin with a free consultation at a law firm. Then they can receive legal advice and more forward with their cases. The attorney will work quickly to file the case before the medical malpractice statute of limitations runs out.

Damage Caps in Utah

Noneconomic damages are capped at $450,000 for causes of action that occurred on or after May 15, 2010.

See Damage Caps by Each State