Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
Utah caps non-economic (pain and suffering) damages in medical malpractice cases at $450,000, without regard to the severity of the patient's injuries.
Installment Payments of Damages
In a medical malpractice action, at the request of any party, the court must order that future damages which equal or exceed $100,000, less amounts payable for attorney's fees and other costs which are due at the time of judgment, be paid by periodic payments rather than by a lump sum payment. Adequate security must be provided to ensure that the future payments will be made. Except for the portion of the award for future earnings, the periodic payments end with the death of the plaintiff.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Utah has abolished that rule in favor of several liability, pursuant to which defendants are liable for damages only in proportion to the percentage of fault assigned to them for the injury to the claimant.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Utah has eliminated the collateral source rule for medical malpractice cases.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Utah, the statute of limitations for malpractice cases is two years from the occurrence underlying the claim, but not more than for years from that allegedly culpable act or omission. For cases involving an object left inside a patient's body, or fraudulent concealment of the claim from a patient, the statute of limitations is one year from the date the object or cause of action was or reasonably should have been discovered. The general statute applies to minors, and also to claims of malpractice that results in wrongful death.
Additional rules affecting malpractice litigation in the State of Utah include:
Limits on Attorney Fees
Contingent fees for personal injury and wrongful death actions, including medical malpractice cases, are capped at one third of the amount recovered.
In Utah, the claimaint in a medical malpractice claim must request a pre-litigation panel review within sixty days of filing a statutory notice to commence action. Unless otherwise agreed by the parties the review is to be completed witin 180 days after the filing of the request. Each review panel is comprised of a lawyer, a licensed health care professional practicing and experienced in a relevant area of practice or, for claims only against hospitals or their employees, a qualified hospital administrator, and a lay panelist. Not more than thirty days after the hearing, the panel must issue a written report based on evidence, finding for each claim against the defendant whether or not the claim has merit, and for claims determined meritorious whether the conduct complained of resulted in injury to the claimant.
The panel shall issue a certificate of compliance to the claimaint if the panel has determind the claim has merit, if the claimant has filed an acceptable affidavit of merit in relation to a named respondent, or the plaintiff complied with the prelitigaiton panel rules but the department confirms that the respondent failed to cooperate with the scheduling of a pre-litigation hearing or that the panel did not issue a timely report. The review hearing is informal and non-binding. The results of the review process are not admissible in evidence at any subsequent civil litigation or arbitration hearing.
Affidavit of Merit Rules
An affidavit of merit is a document created by a medical expert, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim. In any case in which a pre-litigation review panel finds that the claimant's allegations are without merit, where the review panel has not issued a timely report, or where the review panel has determined that the claimant should do so, the claimaint in a malpractice case must file an affidavit of merit. The affidavit is normally due within sixty days of the panel's decision, within sixty days of the time the panel's decision was due if the panel does not meet its statutory deadlines, or within thirty days of a panel's determination that the claimant should file an affidavit of merit. Failure to file an affidavit of merit, when required, will prevent the issuance of a certificate of compliance and the malpractice action will be dismissed by the court.
The affidavit of merit must be executed by the claimant's attorney or, if the claimant is not represented by counsel, by the claimant. The affidavit must attest that the affiant has consulted with a qualified health care provider and reviewed the facts of the case with that provider who, after a review of the medical record and other relevant material involved in the action, has determined that there is a reasonable and meritorious cause for the filing of a medical liability action. The affidavit of merit must also include an affidavit signed by a qualified health care provider, which states that in the health care provider's opinion there are reasonable grounds to believe that the applicable standard of care was breached and that the breach was a proximate cause of the injury claimed in the notice of intent to commence action, and state the reasons for the health care provider's opinion. It is not necessary for the expert's affidavit to state belief that an applicable standard of care was breached if the medical review panel found that there was a breach of the applicable standard of care.
Medical Expert Witness Restrictions
In order to qualify to sign an affidavit of merit, if none of the respondents is a licensed physician, the health care provider signing the affidavit must hold a current, unrestricted license issued by a U.S. state in the same specialty or clas as the respondents. If one or more of the respondents is a licensed physician, the health care provider must hold a current unrestricted license issued by the appropriate licensing authority of Utah or another U.S. state to practice medicine in all its branches.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.