Commerce, Occupational and Professional Licensing

Rule R156-78B

Prelitigation Panel Review Rule

Notice of Proposed Rule

(Amendment)

DAR File No.: 34215
Filed: 11/02/2010 04:25:37 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule change is to first, implement the provisions of S.B. 145 enacted during the 2010 Legislative General Session; second, to incorporate provisions that have not changed but were not adequately addressed by rule including Health Insurance Portability and Accountability Act of 1996 (HIPAA) requirements with regard to issuance of subpoenas for medical records; third, to incorporate new provisions that have evolved into current practices; fourth, to address requests for pre-litigation review by incarcerated persons for malpractice claims that occurred while the person was incarcerated and the alleged malpractice is against the State of Utah; and fifth, to clarify ambiguities; and sixth, to make technical changes. (DAR NOTE: S.B. 145 (2010) is found at Chapter 97, Laws of Utah 2010, and was effective 05/11/2010.)

Summary of the rule or change:

Section R156-78B-2 adds definitions for the following terms: "date of the panels opinion," "issuance of an opinion" and "issue an opinion"; "file," "filing", or "filed"; "findings", "conclusions", "determinations", or "results"; "HIPPA"; "panel opinion", or "opinion"; and "service". In addition, the definition of "pleadings is modified. Subsection R156-78B-4(2) is changed to clarify that except as otherwise required by Title 78B, Chapter 3, the Division may permit a deviation from this rule when it finds compliance to be impractical or unnecessary. Subsection R156-78B-4(3) addressing the computation of time is changed to address the Division's four day work week. In Section R156-78B-5, added wording to this section which provides that "counsel" means active members of the Utah State Bar or active members of any other state bar and allows for counsel from a foreign licensing state. Subsections R156-78B-7(2) and (3) are changed to better address the provisions governing the process for service of pleadings. Subsection R156-78B-7(4) is added so there is a provision addressing date of service. In Section R156-78B-9, the word "shall" is changed to "may" in Subsections R156-78B-7(4)(c) and (5)(e) to provide the Division better flexibility in this circumstance. A new Subsection R156-78B-7(6) is added to address requests made by incarcerated persons. It provides that if a request, notice, or other documentation indicates that the alleged malpractice occurred while the petitioner was incarcerated and the alleged malpractice claim is against the State of Utah, its agencies or employees, the request shall be denied based upon Subsection 63G-7-301(5)(j). It further provides that subsequent requests or communication from an incarcerated petitioner whose request has been denied will not receive response unless the petitioner files an amended request and notice that demonstrates that the alleged malpractice did not occur while the petitioner was incarcerated, or that the alleged malpractice claim is not against the State of Utah, its agencies or employees. In Section R156-78B-11, a clarification is made to this very seldom used section to provide that the Division may authorize a prehearing conference by exception and under the direction of a panel chair. Subsection R156-78B-12(1) is added to clarify that pre-litigation panel hearings are informal as provided by Subsection 78B-3-416(1)(c) and are not governed by Title 63G, Chapter 4, Utah Administrative Procedures Act, and they are closed to the public as provided by Subsection 78B-3-417(5)(a). Subsection R156-78B-12(2) is added to codify an existing standard into rule establishing the duration of a pre-litigation hearing. Subsection R156-78B-12(12) is changed to modify the title of the section from "Subpoenas and Fees" to "SubpoenasDiscovery and Perpetuation of Testimony". The title of Subsection R156-78B-12(12)(a) is modified from "Issuance of Subpoenas" to "Subpoenas for Medical Records Authorized Discovery and Perpetuation of Testimony Prohibited". The body of Subsection R156-78B-12(12)(a) is modified to remove subpoena authority to compel the appearance of witnesses at pre-litigation panel hearings which appears to exceed our statutory authority set forth in Subsection 78B-3-417(2). The existing Subsection R156-78B-12(12)(b) governing payment of witness fees is removed consistent with the removal of the Division's authority to compel the appearance of witnesses at a pre-litigation panel hearing. A new Subsection R156-78B-12(12)(b) is added to address the requirements and process for issuance of subpoenas for medical records. The subsection specifies that the subpoena must be prepared in proper form by the person requesting the subpoena and must be accompanied by either a release from the individual who is the subject of medical records from the individual's guardian or conservator, or by an affidavit with the proscribed text set forth in Table IV. The affidavit incorporates the requirements of Subsection 78B-3-417(2), which is the current standard, and in addition addresses compliance with the requirements of HIPAA that HIPAA places upon the person seeking access to medical records pursuant to a subpoena issued under 45 CFR 164.512(e). Specifically, the person seeking access to medical records must certify that they will provide the specified satisfactory assurances to the covered entity from whom the medical records are sought. A new Subsection R156-78B-12(12)(b) also provides that if the covered entity fails or refuses to provide the medical records subject to the administrative subpoena that enforcement must be sought through a court of competent jurisdiction under Section 78B-6-313 of the Judicial Code. Subsections R156-78B-14(1) and (2) are changed, along with the accompanying definitions in Section R156-78B-2, to clarify the distinction between a panel determination and a panel opinion and the fact that a panel renders and files its determinations and opinions with the Division. Subsection R156-78B-14(3) clarifies and establishes that it is the panel's responsibility to render and file its determination and opinion and the Division's responsibility to issue the panel's determination and opinion. Subsection R156-78B-14(4) organizes and clarifies the circumstances and timing for the Division's issuance of a certificate of compliance. Subsection R156-78B-14(4) clarifies that a certificate of compliance issued by the Division shall be accompanied by the supporting documentation including the applicable panel determination or finding, supplemental memorandum opinion, determination on petitioner's affidavit of respondent's failure to reasonably cooperate in the scheduling of a pre-litigation hearing, required affidavits of merit, etc. Subsection R156-78B-14(4) clarifies that a certificate of compliance will not be issued to a person who fails to timely file a required affidavit of merit. Subsection R156-78B-15(1) clarifies the deadline for submitting an affidavit alleging failure to reasonably cooperate in scheduling a hearing. Subsection R156-78B-15(2) establishes that an affidavit alleging failure to reasonably cooperate in scheduling a hearing shall set forth a specific factual basis. Subsection R156-78B-15(3) provides what "failure to reasonably cooperate in scheduling a hearing" includes. Subsection R156-78B-15(4) establishes that an affidavit alleging failure to reasonably cooperate in scheduling a hearing must comply with Section R156-78B-6 governing pleadings and Section R156-78B-7 governing filing and service. Subsection R156-78B-15(5) establishes a right for a respondent to respond to an affidavit alleging failure to reasonably cooperate in scheduling a hearing within five days after the filing of the affidavit. The response must be in the form of a counter affidavit. Subsection R156-78B-15(6) establishes that the Division shall review petitioner's affidavit alleging failure to reasonably cooperate in scheduling a hearing and respondent's counter affidavit, if any, and determine whether respondent failed to reasonably cooperate in scheduling a hearing. If so then the Division is required to issue a certificate of compliance to petitioner in conjunction with its determination. If not, it is required to issue a notice to petitioner that the petitioner must timely file an affidavit of merit before the Division can issue a certificate of compliance. Subsection R156-78B-16a(1) clarifies that the required affidavit of merit consists of two or more affidavits, one executed by counsel or by a pro se claimant and one or more signed by an appropriate health care provider. Subsection R156-78B-16a(2) provides that required affidavits must comply with Section R156-78B-6 governing pleadings and Section R156-78B-7 governing filing and service. Section R156-78B-16b clarifies and specifies the content requirement, or its substantial equivalent, of an affidavit of merit by counsel or a by a pro se claimant. Subsection R156-78B-16c(1) clarifies and specifies the content requirement, or its substantial equivalent, of an affidavit of merit by a health care provider. Subsection R156-78B-16c(2) clarifies when a portion of the required content is waived. Section R156-78B-16d clarifies the type of health care provider or providers who are required to complete an affidavit of merit to support the issuance of a certificate of compliance. Subsection R156-78B-16e(1) clarifies and specifies the content requirement, or its substantial equivalent, of an affidavit for a 60-day extension to file an affidavit of merit. Subsection R156-78B-16e(2) establishes a right for a respondent to respond to an affidavit for a 60-day extension to file an affidavit of merit within 5 days after the filing of the affidavit. The response must be in the form of a counter affidavit. Technical changes were also made throughout the rule.

State statutory or constitutional authorization for this rule:

• Subsection 78B-3-416(1)(b)

Anticipated cost or savings to:

the state budget:

In General: there will be a cost of approximately $50 to reprint and distribute this rule. The new program aspects of S.B. 145 implemented by this rule may increase the workload for the Pre-litigation Program, in particular the workload of administering the new: 1) affidavits alleging failures to reasonably cooperate in scheduling a hearing; 2) affidavits supporting requests for extension of time to file an affidavit of merit; and 3) affidavits of merit. The fiscal note for this bill was $8,500. During FY 2009, the Pre-litigation Program opened 338 cases, closed 361 cases, and scheduled 196 hearings. The breakout in outcome of the cases closed was as follows: No Merit 144; Meritorious 20; Stipulated 72; Dismissed 67; Split Decision - 29; and Jurisdiction 29. It is estimated that more than one half of the no merit and jurisdiction cases will move forward to litigation. This is approximately 100 cases. In addition, it is estimated that virtually all of the stipulated and split decision cases will move forward to litigation. This is approximately 100 more cases, for a total of approximately 200 other than meritorious cases going forward to litigation. Specific analysis of the new workload by type of affidavit or activity is as follows. Affidavits submitted to Support the Issuance of an Administrative Subpoena for Medical Records: the current affidavit submitted to support the issuance of an administrative subpoena for medical records is changed substantially. The Division may reject and return many subpoenas as the parties to pre-litigation and/or their counsel work through a learning curve. The cost of many of these workload modifications cannot be accurately predicted. Affidavits alleging Failure to Reasonably Cooperate in Scheduling a Hearing: the current process for jurisdiction cases involves simply issuing a certificate of compliance indicating the loss of jurisdiction once the 180-day jurisdictional timeframe has run, unless the parties have agreed to a longer time frame. Under the new requirements upon the timely filing of this type of affidavit by petitioner's counsel, the Division of Occupational and Professional Licensing (DOPL) will await the time period for the filing of a counter affidavit by respondent's counsel. DOPL will then evaluate the affidavits and either: 1) issue a determination agreeing with petitioner's counsel and issue a certificate of compliance; or 2) issue a determination disagreeing with petitioner's counsel and send a notice petitioner to submit an affidavit of merit within 30-days in order to receive a certificate of compliance. There will certainly be multiple filings in this category, perhaps as many as half of these cases or approximately 15 cases. This is a significant new workload. Affidavits of Merit: An affidavit of merit is required in the following situations: loss of jurisdiction cases in which an affidavit alleging failure to reasonably cooperate in scheduling a hearing is not submitted, or is submitted but is not supported; and cases that go to a pre-litigation hearing and receive a finding/opinion of no merit with regard to either the standard of care or damages, or both. As indicated this will be somewhere in the vicinity of 200 cases. Current process for loss of jurisdiction cases is as set forth above. Current process for non-meritorious cases is to simply send out a certificate of compliance together with the associated findings and opinion. The new process will turn a 1-step process into a 2-step process in which the opinion and findings will go out separately and the Division will then wait for 30 or 60 days, depending on the type of case, for the submittal of affidavits of merit, one from the petitioner or petitioner's counsel and one or more from health care providers. If an affidavit of merit is timely received, the Division will then send out the certificate of compliance. If not, it will close the case and send out a notice of case closure or dismissal. Affidavits requesting an Extension of Time to File Affidavit of Merit: Finally, an undetermined but significant number of petitioners will request a 60-day extension to file their required affidavit of merit. This is required to be done in the form of an affidavit. Respondent's counsel will be given an opportunity to respond by a counter affidavit. DOPL will then evaluate the affidavits and determine whether to grant the extension and issue the appropriate determination. Paper, Envelopes, and Postage: additional paper, envelope, and multiple mailings for each of the cases affected by the new affidavit requirements times multiple mailings per case are expected to increase by as many as 1,000 mailings per year or an increase in cost of $450. State Courts: there may be an impact to state courts in that they may see a decrease in the number of filings of cases due to the new affidavit requirements. This impact may be compounded by the potential impact to a petitioner or petitioner's counsel who submits an affidavit of merit that could be determined to be without reasonable cause and untrue at the time the affidavit or affidavits were submitted, and result in respondent or respondent's counsel being ordered to pay respondents attorney fees and court costs. The amount of this impact cannot be quantified. State-Owned Medical Facilities: there may be a cost savings from a decrease in the number of medical malpractice cases involving state government owned health care facilities and/or their employees due to the new affidavit requirements. This impact may be compounded by the potential impact to a petitioner or petitioner's counsel who submits an affidavit of merit that could be determined to be without reasonable cause and untrue at the time the affidavit or affidavits were submitted, and result in respondent or respondent's counsel being ordered to pay respondent's attorney fees and court costs. The amount of these cost savings cannot be quantified. The current affidavit submitted to support the issuance of an administrative subpoena for medical records is changed substantially. The changes and the underlying process it entails may increase the cost of those who are currently not in compliance with the requirements of HIPAA. The learning curve will likely result in many subpoenas initially being rejected and returned for reworking and resubmission. These cost increases cannot be quantified.

local governments:

There may be a cost savings from a decrease in the number of medical malpractice cases involving local government-owned health care facilities and/or their employees due to the new affidavit requirements in most cases. This impact may be compounded by the potential impact to a petitioner or petitioner's counsel who submits an affidavit of merit that could be determined to be without reasonable cause and untrue at the time the affidavit or affidavits were submitted, and result in respondent or respondent's counsel being ordered to pay respondent's attorney fees and court costs. The amount of these cost savings cannot be quantified. The current affidavit submitted to support the issuance of an administrative subpoena for medical records is changed substantially. The changes and the underlying process it entails may increase the cost of those who are currently not in compliance with the requirements of HIPAA. The learning curve will likely result in many subpoenas initially being rejected and returned for reworking and resubmission. These cost increases cannot be quantified.

small businesses:

There may be a cost savings from a decrease in the number of medical malpractice cases involving small businesses that own and operate medical facilities and/or their employees due to the new affidavit requirements in most cases. This impact may be compounded by the potential impact to a petitioner or petitioner's counsel who submits an affidavit of merit that could be determined to be without reasonable cause and untrue at the time the affidavit or affidavits were submitted, and result in respondent or respondent's counsel being ordered to pay respondent's attorney fees and court costs. The amount of these cost savings cannot be quantified. The current affidavit submitted to support the issuance of an administrative subpoena for medical records is changed substantially. The changes and the underlying process it entails may increase the cost of those who are currently not in compliance with the requirements of HIPAA. The learning curve will likely result in many subpoenas initially being rejected and returned for reworking and resubmission. These cost increases cannot be quantified. There will be a cost increase to small businesses who are petitioners or who represent petitioners due to the new affidavit of merit requirements. The attorney and health care provider affidavits of merit will be costly, perhaps as much as $500 - $750, or even more in a complex case.

persons other than small businesses, businesses, or local governmental entities:

There may be a cost savings to health care providers from a decrease in the number of medical malpractice cases against them due to the new affidavit of merit requirements. This impact may be compounded by the potential impact to a petitioner or petitioner's counsel who submits an affidavit of merit that could be determined to be without reasonable cause and untrue at the time the affidavit or affidavits were submitted, and result in respondent or respondent's counsel being ordered to pay respondents attorney fees and court costs. The amount of these cost savings cannot be quantified. The current affidavit submitted to support the issuance of an administrative subpoena for medical records is changed substantially. The changes and the underlying process it entails may increase the cost of those who are currently not in compliance with the requirements of HIPAA. The learning curve will likely result in many subpoenas initially being rejected and returned for reworking and resubmission. These cost increases cannot be quantified. The new requirements will result in a cost increase to health care providers who are petitioners or an attorney represents petitioners due to the new affidavit of merit requirements in most cases. The attorney and health care provider affidavits of merit will be costly in a complex case. This filing may result in a cost savings to insurance companies that insure health care providers in that there may be a decrease in the number of medical malpractice cases against their policyholders that move forward to litigation due to the new affidavit of merit requirements in most cases. This impact may be compounded by the potential impact to a petitioner or petitioners counsel who submits an affidavit of merit that could be determined to be without reasonable cause and untrue at the time the affidavit or affidavits were submitted, and result in respondent or respondent's counsel being ordered to pay respondent's attorney fees and court costs. The amount of these cost savings cannot be quantified. The cost savings could in turn drive a reduction in the cost of medical malpractice insurance at some point.

Compliance costs for affected persons:

This filing may result in a cost savings to a health care provider because there may be a decrease in the number of medical malpractice cases against them that move forward to litigation due to the new affidavit of merit requirements in most cases. This impact may be compounded by the potential impact to a petitioner or petitioner's counsel who submits an affidavit of merit that could be determined to be without reasonable cause and untrue at the time the affidavit or affidavits were submitted, and result in respondent or respondent's counsel being ordered to pay respondent's attorney fees and court costs. The amount of these cost savings cannot be quantified. The current affidavit submitted to support the issuance of an administrative subpoena for medical records is changed substantially. The changes and the underlying process it entails may increase the cost of those who are currently not in compliance with the requirements of HIPAA. The learning curve will likely result in many subpoenas initially being rejected and returned for reworking and resubmission. These cost increases cannot be quantified. This change will result in a cost increase to health care providers who are petitioners or an attorney represents petitioners because of the new affidavit of merit requirements in most cases. It will result in a cost increase for the attorney and health care provider affidavits of merit, the latter of which could be as high as $500 - $750, or even more in a complex case.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule filing implements new statutory changes, the fiscal impact of which was addressed in the passage of the legislation. It also provides new definitions, clarifies HIPAA requirements, addresses prelitigation cases by incarcerated individuals, clarifies ambiguities, and makes other technical corrections. The rule summary addresses in detail the cost impact of implementing the statutory amendments and the cost impact of other changes. No further fiscal impact to businesses is anticipated.

Francine A. Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Commerce
Occupational and Professional Licensing
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• W. Ray Walker at the above address, by phone at 801-530-6256, by FAX at 801-530-6511, or by Internet E-mail at raywalker@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/31/2010

Interested persons may attend a public hearing regarding this rule:

• 12/09/2010 09:00 AM, Heber Wells Bldg, 160 E 300 S, Conference Room 401 (fourth floor), Salt Lake City, UT

This rule may become effective on:

01/07/2011

Authorized by:

Mark Steinagel, Director

R156. Commerce, Occupational and Professional Licensing.

R156-78B. Prelitigation Panel Review Rule.

R156-78B-2. Definitions.

In addition to the definitions in Section 78B-3-403, which shall apply to this rule:

(1) "Answer" means a responsive answer to a request.

(2) "Date of the panel's opinion", "issuance of an opinion", and "issue an opinion", as used in Subsections 78B-3-423(1)(a)(i), 78B-3-416(3)(a)(i)(A), and 78B-3-418(1)(a), respectively, mean the date the Division issues a panel opinion filed with the Division by a prelitigation panel.

([2]3) "Director" means the Director of the Division of Occupational and Professional Licensing.

(4) "File", "filing", or "filed" means a pleading or document filed with the Division with service to all parties as required in Section R156-78B-7.

(5) "Findings", "conclusions", "determinations", or "results", as used in Section 78B-3-419, means a written outcome of a prelitigation panel whether each claim against each health care provider has merit, and if meritorious, whether the conduct complained of resulted in harm to the claimant.

(6) "HIPAA" means the Health Insurance Portability and Accountability Act of 1996, enacted by Congress in Pub. L. No 104-91 as implemented by 45 CFR Parts 160 and 164, as amended.

(7) "Issue" or "issued", as it relates to a written action or notice permitted or required from the Division, means the finalization of an action or notice by the Division as reflected by an authorized signature and date on the action or notice.

([3]8) "Meritorious claim" means that there is a basis in fact and law to conclude that the standard of care has been breached and the petitioner has been injured thereby, such that the petitioner has a reasonable expectation of prevailing at trial.

([4]9) "Motion" means a request for any action or relief permitted under Sections 78B-3-416 through 78B-3-420 or this rule.

([5]10) "Nonmeritorious claim" means that the evidence before the panel is insufficient to conclude that the case is meritorious, but does not necessarily mean the case is frivolous.

([6]11) "Notice" means a notice of intent to commence action under Section 78B-3-412.

([7]12) "Panel" means the prelitigation panel appointed in accordance with Subsection 78B-3-416(4) to review a request.

(13)(a) "Panel opinion" or "opinion" as shortened in context with reference to a panel opinion, as used in Sections 78B-3-418, 78B-3-419, and 78B-3-423, means the supplemental memorandum opinion rendered by the prelitigation panel as required by Subsection R156-78B-14(2), that articulates the basis for the panel's findings, determinations or results as to whether each claim against each health care provider has merit and, if meritorious, whether the conduct complained of resulted in harm to the claimant.

(b) If a supplemental memorandum opinion is not timely rendered by the prelitigation panel, "panel opinion" or "opinion" means the prelitigation panel findings, conclusions, determinations, or results.

([8]14) "Party" means a petitioner or respondent.

([9]15) "Person" means any natural person, sole proprietorship, joint venture, corporation, limited liability company, association, governmental subdivision or agency, or organization of any type.

([10]16) "Petitioner" means any person who files a request with the [d]Division.

([11]17) "Pleadings" include the requests, answers, motions, briefs and any other documents filed by the parties to a request.

([12]18) "Request" means a request for prelitigation panel review under Section 78B-3-416.

([13]19) "Respondent" means any health care provider named in a request.

(20) "Service" means service as set forth in Subsection R156-78B-7.

 

R156-78B-3. Authority - Purpose.

This rule is adopted by the [d]Division under the authority of Subsection 78B-3-416(1)(b) to define, clarify, and establish the process and procedures which govern prelitigation panel reviews.

 

R156-78B-4. General Provisions.

(1) Purpose.

This rule is intended to secure the just, speedy and economical determination of all issues presented to the [d]Division.

(2) Deviation from Rule.

Except as otherwise required by Title 78B, Chapter 3, t[T]he [d]Division may permit a deviation from this rule [insofar as it may]when it find s compliance [therewith] to be impractical or unnecessary.

(3) Computation of Time.

The time within which any act shall be done, as herein provided, shall be computed by excluding the first day and including the last, unless the last day is Friday, Saturday, Sunday or a state holiday, and then it is excluded and the period runs until the end of the next day which is [neither a Saturday, Sunday nor a holiday]a scheduled workday for the Division. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. Whenever a party has the right or is required to do some act within a prescribed period after the service of a notice or other paper upon [him]the party and the notice or paper is served upon [him]the party by mail, three days shall be added to the prescribed period.

 

R156-78B-5. Representations - Appearances.

(1) Representation of Parties.

(a) A party may be represent ed [himself]by counsel or may represent onself individually, or if not an individual, may represent itself through an officer or employee[, or may be represented by counsel]. For the purpose of this provision, the term "counsel" means active members of the Utah State Bar or active members of any other state bar.

(b) Counsel from a foreign licensing state shall submit a notice of appearance to the presiding officer along with a certificate of good standing from the foreign licensing state.

(2) Entry of Appearance of Representation.

Parties shall promptly enter their appearances by giving their names and addresses and stating their positions or interests in the proceeding. When possible, appearances shall be entered in writing concurrently with the filing of the request for petitioner and no later than 10 days from service of the request for respondent.

 

R156-78B-6. Pleadings.

(1) Docket Number and Title.

Upon receipt of a timely Request for Prelitigation Review, the [d]Division shall assign a two letter code identifying the matter as involving this type of request (PR), a two digit code indicating the year the request was filed, a two digit code indicating the month the request was filed, and another number indicating chronological position among requests filed during the month. The [d]Division shall give the matter a title in substantially the following form:

 

TABLE I

BEFORE THE DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING
OF THE DEPARTMENT OF COMMERCE
OF THE STATE OF UTAH

     John Doe,

        Petitioner                            Request for

                                          Prelitigation Review


  
     -vs-


  
     Richard Roe,                     No. PR-XX-XX-XXX

        Respondent

 

(2) Form and Content of Pleadings.

Pleadings must be double-spaced and typewritten and presented on standard 8 1/2" x 11" white paper. They must identify the proceeding by title and docket number, if known, and shall contain a clear and concise statement of the matter relied upon as a basis for the pleading, together with an appropriate prayer for relief when relief is sought. A request shall, by affirmation, set forth the date that the required notice was served, shall include a copy of the notice and shall reflect service of the request upon all parties named in the notice and request. When a petitioner fails to attach a copy of the notice to petitioner's request, the [d]Division shall return the request to the petitioner with a written notice of incomplete request and conditional denial thereof. The notice shall advise the petitioner that his request is incomplete and that the request is denied unless the petitioner corrects the deficiency within the time period specified in the notice and otherwise meets all qualifications to have the request granted.

(3) Signing of Pleadings.

Pleadings shall be signed by the party or their counsel of record and shall indicate the addresses of the party and, if applicable, their counsel of record. The signature shall be deemed to be a certification that the signer has read the pleading and that, to the best of his knowledge and belief, there is good ground to support it.

(4) Answers.

A respondent named in a request may file an answer relative to the merits set forth in the petitioner's notice. Affirmative defenses shall be separately stated and numbered in an answer or raised at the time of the hearing. Any answer must be filed no later than 15 days following the filing of the request.

(5) Motions.

(a) Motions to be Filed in Writing.

Motions shall be in writing unless the motion could not have been anticipated prior to the prelitigation panel hearing.

(b) Time Periods for Filing Motions and Responding Thereto.

(i) Motions to Withdraw a Request.

Any motion to withdraw a request shall be filed no later than five days before the prelitigation panel hearing.

(ii) Motions Directed Toward a Request.

Any motion directed toward a request shall be filed no later than 15 days after service of the request.

(iii) Motions Directed Toward the Composition of a Panel.

Any motion directed toward the composition of a panel shall be filed no later than five days after discovering a basis therefore.

(iv) Motions to Dismiss.

Any motion to dismiss shall be filed no later than five days after discovering a basis therefore.

(v) Extraordinary Motions for Discovery or Perpetuation of Evidence.

Any motion seeking discovery or perpetuation of evidence for good cause shown demonstrating extraordinary circumstances shall be filed no later than 15 days before the prelitigation panel hearing.

(vi) Response to a Motion.

A response to a motion shall be filed no later than five days after service of the motion and any final reply shall be filed no later than five days after service of the response to the motion.

(c) Affidavits and Memoranda.

The [d]Division or panel shall permit and may require affidavits and memoranda, or both, in support or contravention of a motion.

(d) The [d]Division or panel may permit or require oral argument on a motion.

 

R156-78B-7. Filing and Service.

(1) Filing of Pleadings. All pleadings shall be filed with the [d]Division with service thereof to all parties named in the notice. The [d]Division may refuse to accept pleadings if they are not filed in accordance with the requirements of this rule.

(2) Process for Service.

(a) All [P]pleadings and documents issued by the [d]Division or panel that are required to be served shall at the option of the Division be served [either] by personal service , [or by] first class mail , registered mail, certified mail, or by express mail. Personal service shall be made upon a party in accordance with the Utah Rules of Civil Procedure by any peace officer within the State of Utah or by any person specifically designated by the [d]Division.[ When an attorney has entered an appearance on behalf of any party, service upon that attorney constitutes service upon the party so represented.]

(b) A request for a prelitigation proceeding filed by a petitioner shall be served in accordance with the same process for service required for a notice of intent as set forth in Subsection 78B-3-412(3). All other pleadings or documents filed by a party shall at the option of the party be served by personal service, first class mail, registered mail, certified mail, or by express mail.

(c) When an attorney has entered an appearance on behalf of any party, service upon that attorney constitutes service upon the party so represented.

(3) Proof of Service.

(a) There shall appear on all pleadings or documents required to be served a certificate of service certifying the appropriate method of service as set forth in Subsection (2), in substantially the following form:

 

TABLE II

     I hereby certify that I have this day served the foregoing

document upon the parties of record in this proceeding set forth

below (by delivering a copy thereof in person ) (by mailing a copy

thereof, properly addressed by first class mail)
 (by registered mail) (by certified mail) (by certified mail, return receipt 


requested) (by type of express mail):


  
                   (Name of parties of record)

                             (addresses)


  
     Dated this (day)  day of (month), (year).


  
     (Signature)

     (Title)

 

(b) Any pleading or document filed with the Division shall be accompanied by documentation of the service reflected in the certificate of service.

(4) Date of Service.

Pleadings or documents shall be considered served on the date of personal service or mailing date, as set forth in Subsection (2).

 

R156-78B-8. Panel Selection and Compensation.

(1) The [d]Division shall commence the selection and appointment of panel members following the issuance of a notice of hearing pursuant to this rule.

(2) The selection and appointment of panel members shall be in accordance with Subsections 78B-3-416(4) and (5).

(3) (a) In accordance with Subsection 78B-3-416(4), whenever multiple respondents are identified in a request, the [d]Division shall select and appoint a panel to sit in consideration of all claims against any respondent as follows:

(i) one lawyer member who is the chairman in accordance with Subsection 78B-3-416(4)(a);

(ii) one lay panelist member in accordance with Subsection 78B-3-416(4)(c);

(iii) one licensed health care provider who is practicing and knowledgeable for each specialty represented by the respondents in accordance with Subsection 78B-3-416(4)(b)(i); and

(iv) if a hospital or their employees are named as a respondent, one member who is an individual currently serving in a hospital administration position directly related to hospital operations or conduct that includes responsibility for the area of practice that is the subject of the liability claim, in accordance with Subsection 78B-3-416(4)(b)(ii).

(b) The distinction between a hospital administrator and a person serving in a hospital administration position referenced in Subsection 78B-3-416(4)(b)(ii) is significant and is hereby emphasized.

(c) The person serving in a hospital administration position referenced in Subsection 78B-3-416(4)(b)(ii) shall be from a different facility than the facility which is the subject of the alleged medical liability case, but may be from the same umbrella organization provided the panel member certifies under oath that he is free from bias or conflict of interest with respect to any matter under consideration as required by Subsection 78B-3-416(6).

(d) Petitioner and respondent may stipulate concerning the type of health care provider to be selected and appointed by the [d]Division, unless the stipulation is in violation with the panel composition requirements set forth in Subsection 78B-3-416(4)(b).

(4) Upon stipulation of all parties, a motion to evaluate damages may be submitted to the [d]Division whereupon the [d]Division may appoint an additional panel member to assist in evaluating damages.

(5) The [d]Division shall ensure that panelists possess all qualifications required by statute and this rule.

(6) Upon appointment to a prelitigation panel, each member thereof shall sign a written affirmation in substantially the following form:

 

TABLE III

     I, (panel member), hereby affirm that, as a member of a 


prelitigation panel, I will discharge my responsibilities without

bias towards any party.  I also affirm that, to the best of my

knowledge, no conflict of interest exists as to any matter which

will be entrusted to my consideration as a panel member.

     Dated this (day) day of (month), (year).


  
     (Signature)

 

(7) Panel members shall be entitled to per diem compensation and travel expenses according to a schedule as established and published by the [d]Division.

 

R156-78B-9. Action upon Request - Scheduling Procedures - Continuances.

(1) Action upon Request.

Upon receiving a request, the [d]Division shall issue an order approving or denying the request.

(2) Criteria for Approving or Denying a Request.

The criteria for approving or denying a request shall be whether:

(a) the request is timely filed in accordance with Subsection 78B-3-416(2)(a);

(b) the request includes a copy of the notice in accordance with Subsection 78B-3-416(2)(b) and documentation that the notice was served in accordance with Section 78B-3-412; and

(c) the request has been mailed to all health care providers named in the notice and request as required by Subsection 78B-3-416(2)(b).

(3) Legal Effect of Denial of Request.

The denial of a request restarts the running of the applicable statute of limitations until an appropriate request is filed with the [d]Division.

(4) Scheduling Procedures.

(a) If a request is approved, the order approving the request shall direct the party who made the request to contact all parties named in the request and notice to determine by agreement of the parties:

(i) what type of health care provider panelists are requested;

(ii) at least two dates acceptable to all parties on which a prelitigation panel hearing may be scheduled; and

(iii) whether or not the case will be submitted in accordance with Section R156-78B-13 and if so, the nature of the submission.

(b) The order shall direct the party who made the request to file the scheduling information with the [d]Division, on forms available from the [d]Division, no later than 20 days following the issuance of the order.

(c) If the party so directed fails to comply with the directive without good cause, the [d]Division [shall]may schedule the hearing without further input from the party.

(d) No later than five days following the filing of the approved form, the [d]Division shall issue a notice of hearing setting a date, time and a place for the prelitigation panel hearing. No hearing shall take place within the 35 day period immediately following the filing of a Request for Prelitigation Review, unless the parties and the [d]Division consent to a shorter period of time.

(e) The [d]Division shall thereafter promptly select and appoint a panel in accordance with Subsections 78B-3-416(4) and (5) and this rule.

(5) Continuances.

(a) Standard.

In order to prevail on a motion for a continuance the moving party must establish:

(i) that the motion was filed no later than five days after discovering the necessity for the motion and at least two days before the scheduled hearing;

(ii) that extraordinary facts and circumstances unknown and uncontrollable by the party at the time the hearing date was established justify a continuance;

(iii) that the rights of the other parties, the [d]Division, and the panel will not be unfairly prejudiced if the hearing is continued; and

(iv) that a continuance will serve the best interests of the goals and objectives of the prelitigation panel review process.

(b) If a continuance is granted, the order shall direct the party who requested the continuance to contact all parties named in the request and notice to establish no less than two dates acceptable to all parties, on which the prelitigation panel hearing may be rescheduled.

(c) The order shall direct the party who requested the continuance to file the scheduling information with the [d]Division, on forms approved by the [d]Division, no later than five days following the issuance of the order.

(d) If a party so directed is the petitioner and the petitioner fails to comply with the directive without good cause, the [d]Division shall dismiss the request without prejudice. Upon issuance of the order of dismissal by the [d]Division, the applicable statute of limitations on the cause of action shall no longer be tolled. The petitioner shall be required to file another request prior to the scheduling of any further proceeding and, until this request is filed, the statute of limitations shall continue to run.

(e) If a party so directed is the respondent and the respondent fails to comply with the directive without good cause, the [d]Division [shall]may establish a date for the prelitigation panel hearing acceptable to petitioner and disallow any further motions for continuances from respondent.

(f) No later than three days following the filing of the dates, the [d]Division shall issue a notice of hearing resetting a date, time and a place for the prelitigation panel hearing.

(6) Requests Made By Incarcerated Person.

(a) If a request, notice, or other documentation indicates that the alleged malpractice occurred while the petitioner was incarcerated and the alleged malpractice claim is against the State of Utah, its agencies or employees, the request shall be denied based upon Subsection 63G-7-301(5)(j).

(b) Subsequent requests by or communications from a petitioner whose request has been denied under this subsection will not receive response unless the petitioner files an amended request and notice that demonstrates:

(i) that the alleged malpractice did not occur while the petitioner was incarcerated; or

(ii) that the alleged malpractice claim is not against the State of Utah, its agencies or employees or as provided in Section 63G-7-202.

 

R156-78B-10. Consequences of Failure to Appear at a Scheduled Hearing.

(1) Except as provided by Section R156-78B-13:

(a) If a party or a representative appointed by the party fails to appear for a hearing without good cause after due notice has been provided as to the scheduling of the hearing, the hearing shall proceed in the party's absence and the party shall lose the right to present any further evidence to the panel.

(b) If neither party nor their representatives appear for a hearing without good cause after due notice has been provided as to the scheduling of the hearing, the [d]Division shall dismiss the request without prejudice. The dismissal shall terminate the tolling of the applicable statute of limitations under Subsection 78B-3-416(3).

 

R156-78B-11. Prehearing [ Procedure ] Conferences .

The [d]Division may, in exceptional circumstances as approved by a panel chair, upon written notice to all parties of record, schedule a prehearing conference with the panel for the purposes of formulating or simplifying the issues, obtaining admissions of fact and genuineness of documents which will avoid unnecessary proof, and agreeing to other matters as may expedite the orderly conduct of the prelitigation proceeding[s] or the settlement thereof. Agreements reached during the conference shall be recorded in an appropriate order unless the parties enter into a written stipulation on the matters or agree to a statement thereof made on the record by the chairman of the panel.

 

R156-78B-12. Hearing Procedures.

(1) Authority Governing Hearing Procedures.

Prelitigation panel hearings are informal as provided by Subsection 78B-3-416(1)(c) and are not governed by Title 63G, Chapter 4, Utah Administrative Procedures Act, and they are closed to the public as provided by Subsection 78B-3-417(5)(a).

(2) Duration of Prelitigation Hearings.

The duration of a prelitigation hearing shall be limited to two hours except as otherwise permitted to be extended in duration by the panel chair.

(3) Hearings Closed to the Public.

[All]In accordance with Subsection 78B-3-417(5)(a), prelitigation hearings are closed to the public.

([2]4) Attendance of Panel Members.

Except where a case is submitted in written form in accordance with Section R156-78B-13, all panel members appointed shall be present during the entire hearing.

([3]5) Order of Presentation of Evidence.

Unless otherwise directed by the panel at the hearing, the order of procedure and presentation of evidence will be as follows:

(a) Petitioner;

(b) Respondent; and

(c) Petitioner, if the panel chair permits petitioner to present rebuttal evidence.

([4]6) Method of Presentation of Evidence.

Evidence may be presented by any party on a narrative basis or through direct examination of said party by their counsel of record. The panel may make inquiry of any party pertinent to the issues to be addressed. If a motion to evaluate damages has been granted, the panel may properly take evidence as to that issue. As set forth in Section 78B-3-417, no party has the right to cross-examine, rebut, or demand that customary formalities of civil trials and court proceedings be followed. The panel may, however, request special or supplemental participation of some or all parties in particular respects, including oral argument, evidentiary rebuttal, or submission of briefs.

([5]7) Rules of Evidence.

Formal rules of evidence are not applicable. Any relevant evidence may be admitted if it is the type of evidence commonly relied upon by prudent people in the conduct of their affairs. The panel shall give effect to the rules of privilege recognized by law. Irrelevant, immaterial, and unduly repetitious evidence shall be excluded.

([6]8) Burden of Proof.

The petitioner shall be responsible for establishing a meritorious claim against any respondent, and if the issue of damages is presented, the amount of damages.

([7]9) Standard of Proof.

The standard of proof for prelitigation hearings is a preponderance of the evidence.

([8]10) Use of Evidence.

Use of evidence, documents, and exhibits submitted to a panel shall be in accordance with Subsection 78B-3-417(1) and Section 78B-3-418.

([9]11) Record of Hearing.

On its own motion, the panel may record the proceeding for the sole purpose of assisting the panel in its subsequent deliberation and issuance of an opinion. The record may be made by means of tape recorder or other recording device. No tape recorder or other device shall be used by anyone otherwise present during the proceeding to record the matter. Upon issuance by the panel of its opinion, the record of the proceeding shall be destroyed.

([10]12) Subpoenas[ and Fees] - Discovery and Perpetuation of Testimony.

(a) [Issuance of] Subpoenas for Medical Records Authorized - Discovery and Perpetuation of Testimony Prohibited.

The [d]Division may issue subpoenas for the [attendance of witnesses and the] production of medical records directly related to a claim of medical liability in accordance with Subsection 78B-3-417(2) and (3). However, except as permitted by Subsection 78B-3-417(2) and (3) and in accordance with Subsection 78B-3-417(4), there is not discovery or perpetuation of testimony in prelitigation panel hearings, except upon special order of the panel, and for good cause shown demonstrating extraordinary circumstances.

(b) [Payment of Witness Fees]Requirements and Process for Issuance of Subpoenas for Medical Records.

[A subpoenaed witness who appears for a prelitigation panel review shall be entitled to witness fees and mileage to be paid by the requesting party. Witnesses shall receive the same fee and mileage allowed by law to witnesses in a district court. A witness subpoenaed by a party may, at the time of service of the subpoena, demand one day's witness fee and mileage in advance and unless the fee is tendered, the witness shall not be required to appear.]A request for a subpoena for medical records shall be prepared by the person requesting it in proper form for issuance by the Division and shall be supported by:

(i) a written release for the medical records signed by the individual who is the subject of the medical record or by that individual's guardian or conservator; or

(ii) an affidavit prepared by the person requesting the subpoena which shall include the indicated text:

 

TABLE IV

       I hereby certify:

       (1) that the medical record subject to the requested

  subpoena is believed by the person requesting the subpoena

  ("requester") to be directly related to the medical liability

  claim to which the subpoena is related;

       (2) that the requester will comply with the requirements of

  HIPAA as set forth in 45 CFR 164.512(e), which governs the release

  of protected health information in the course of administrative

  proceedings;

       (3) that more specifically with regard to the requirements

  of HIPAA, the requester will provide a written statement and

  documentation to the covered entity from whom the medical records

  are sought demonstrating satisfactory assurances that:

       (a) the requestor provided the subject of the records notice

  of the subpoena, information about the governing prelitigation

  proceeding, a time period to object to the release of the subject's

  medical records, and that either no objections were filed or that

  objections were filed but resolved by a court of competent

  jurisdiction and the subpoena is consistent with the resolution,

  as specified in 45 CFR 164.512(e)(1)(ii)(A) and detailed in 45 CFR

  164.512 (e)(1)(iii); or

       (b) the parties to the prelitigation proceeding have agreed to a

  qualified protective order and have presented it to a court of competent

  jurisdiction or the requestor has requested a qualified protective order

  from a court of competent jurisdiction, as specified in CFR

  164.512(e)(1) (ii)(B) and detailed in 45 CFR 164.512(3)(1)(iv); and

       (4) that if the recipient of the subpoena for medical records fails

  or refuses to comply with the subpoena, the requester understands that

  resolution of the issues regarding the subpoena needs to be through a

  court of competent jurisdiction.

 

R156-78B-14. Determination - Supplemental Opinion - Issuance of Panel Opinion - Certificate of Compliance.

(1) Panel Determination.

As soon as is reasonably practicable following the conclusion of a hearing or submission of a case to the panel in accordance with Section R156-78B-13, and, if applicable, submission of briefs by the parties, the panel shall render and file with the [d]Division a determination whether [any claim against any respondent is meritorious]each claim against each health care provider has merit or has no merit, and if meritorious whether the conduct complained of resulted in harm to the claimant. If applicable, the determination shall also reflect the panel's evaluation of the damages sustained by the petitioner.

(2) Supplementary Memorandum Opinion.

Within 30 days after filing its determination, the panel shall render and file with the Division a memorandum opinion explaining the panel's determination. The chairman of the panel shall be responsible for the preparation of the memorandum opinion of the panel, but may delegate the initial preparation of the opinion to another member of the panel.

(3) Issuance of Panel Determination and Opinion.

In accordance with Subsections 78B-3-416(3)(a)(i)(A) and 78B-3-418(1)(a), it is the responsibility of a prelitigation panel to render its panel determination and opinion and file them with the Division, and the Division's responsibility to issue the panel determination and opinion.

(4) Certificate of Compliance.

(a) The Director or designee shall issue a certificate of compliance which recites that the petitioner has fully complied with the prelitigation panel requirements of Title 78B, Chapter 3, as follows:

(i) in the case of a meritorious finding or determination, the Division shall issue the certificate of compliance to the petitioner [W]within 15 days after :

(A) the filing of [receiving] the panel's memorandum opinion ; or

(B) in the case of the panel's memorandum opinion not being filed, within 15 days after the deadline for the filing of the memorandum opinion;[the Director or designee shall issue a certificate of compliance which recites that petitioner has fully complied with the requirements of Section 78B-3-416. With respect to the tolling of the statute of limitations referenced in Section 78B-3-416(3), the 60 day time period mentioned therein shall begin to run as of the date the Director causes the certificate of compliance to be served, the three day mailing period set forth in Section R156-78B-4(3) to be applied.]

(ii) in the case of a determination made under Subsection 78B-3-416(3)(d)(ii)(A), within 15 days after petitioner's filing of an affidavit of respondent's failure to reasonably cooperate in the scheduling of a prelitigation hearing;

(iii) in the case of a submission of a written stipulation that no useful purpose would be served by convening a prelitigation panel submitted under Subsection 78B-3-416(3)(e), within 15 days after the filing of the stipulation; and

(iv) in all other cases where an affidavit of merit is required as specified by Section 78B-3-423, within 15 days after the timely filing of the affidavit of merit.

(b) The Division shall include with its service of a certificate of compliance copies of supporting documentation including the applicable panel determination or finding, supplemental memorandum opinion, determination on petitioner's affidavit of respondent's failure to reasonably cooperate in the schedule of a prelitigation hearing, required affidavits of merit, etc.

(c) In accordance with Subsection 78B-3-423(6), a certificate of compliance shall not be issued to a person who fails to timely file a required affidavit of merit.

 

R156-78B-15. Affidavits alleging Failure to Reasonably Cooperate in Scheduling a Hearing.

(1) As required by Subsection 78B-3-416(3)(c)(ii), an affidavit submitted by a petitioner alleging a respondent's failure to reasonably cooperate in scheduling a prelitigation hearing shall be submitted within 180 days of petitioner's request for prelitigation panel review.

(2) The affidavit alleging respondent's failure to reasonably cooperate in scheduling a prelitigation hearing filed under Subsection (1) shall set forth specific factual allegations that:

(a) respondent failed to reasonably cooperate in scheduling a hearing; and

(b) the hearing could not be held within the jurisdictional time frame of 180 days from the date of the request for prelitigation review.

(3) Failure to reasonably cooperate in scheduling a hearing may include one or more of the following reasons:

(a) a respondent failed to agree upon a first and second choice of dates for a prelitigation hearing;

(b) a respondent failed to reasonably participate in determining the type of health care providers requested for the prelitigation hearing panel; or

(c) a respondent submitted a motion for and obtained a continuance of the prelitigation hearing and failed to timely submit a notice of availability for a rescheduled hearing.

(4) An affidavit alleging failure to reasonably cooperate in scheduling a prelitigation hearing shall comply with Section R156-78B-6 governing pleadings and Section R156-78B-7 governing filing and service.

(5) A respondent may file a response to an affidavit alleging failure to reasonably cooperate in scheduling a prelitigation hearing within five days after the service of the affidavit. Any response shall be in the form of a counter affidavit.

(6) The Division shall review petitioner's affidavit alleging failure to reasonably cooperate in scheduling a hearing and respondent's counter affidavit, if any, and make a written determination within 15 days of the filing of petitioner's affidavit, under either Subsections 78B-3-416(3)(d)(ii)(A) or (B). The written determination shall be accompanied by a certificate of compliance or a notice to file an affidavit of merit, as appropriate.

 

R156-78B-16a. Affidavits of Merit - In General.

(1) The required affidavit of merit under Subsection 78B-3-423(1) shall consist of two or more affidavits, one executed by counsel or by a pro se claimant as required by Subsection 78B-3-423(2)(a) and one or more signed by an appropriate health care provider or providers as required by Subsections 78B-3-423(2)(b) and (3).

(2) The required affidavits shall comply with Section R156-78B-6 governing pleadings and Section R156-78B-7 governing filings and service.

 

R156-78B-16b. Affidavits of Merit - Affidavit of Counsel.

Each affidavit of merit executed by counsel or by a pro se claimant as required by Subsections 78B-3-423(1) and (2)(a) shall include the following text immediately prior to the affiant's signature:

 

TABLE V

      I hereby certify that the affiant has consulted with and

  reviewed the facts of the case with an appropriate health care

  provider (or providers) and that the provider (or providers) has

  (have) 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.  The affidavit(s) of merit are attached.

 

R156-78B-16c. Affidavits of Merit - Affidavit of Health Care Provider or Providers.

(1) Each affidavit of merit signed by a health care provider as required by Subsections 78B-3-423(1) and (2)(b) shall include the following text immediately prior to the affiant's signature:

 

TABLE VI

       I hereby certify that I am an appropriate health care provider

  qualified to render an affidavit of merit in this medical

  malpractice case as specified by Subsection 78B-3-423(3).

       I further certify that I have reviewed the medical records and

  other relevant material involved in this medical malpractice case

  and have determined that in my opinion:

       (1) There are reasonable grounds to believe that the applicable

  standard of care was breached.

       (2) The breach was a proximate cause of the injury claimed in

  the notice of intent to commence action.

       (3) The specific reasons for my opinion are as follows

  (explanation).

 

(2) As provided by Subsection 78B-3-423(2)(c), the statement that there are reasonable grounds to believe that the applicable standard of care was breached shall be waived if the claimant received an opinion that there was a breach of the applicable standard of care under Subsection 78B-3-418(2)(a)(i).

 

R156-78B-16d. Affidavits of Merit - Appropriate Health Care Provider Affiant or Affiants.

The appropriate health care provider who is required to issue an affidavit of merit under Subsection 78B-3-423(3) and R156-78B-16c is clarified as follows. The health care provider shall:

(1) if none of the respondents is a physician under Title 58, Chapter 67, Utah Medical Practice Act, or an osteopathic physician under Title 58, Chapter 68, Utah Osteopathic Medical Practice Act, be one or more health care providers who hold an active and in good standing license in Utah or another state in the same specialty or the same class of license as the respondents; or

(2) if at least one of the respondents is a physician under Title 58, Chapter 67, Utah Medical Practice Act, or an osteopathic physician under Title 58, Chapter 68, Utah Osteopathic Medical Practice Act, be exclusively a physician who is licensed and in good standing in Utah or another state to practice medicine in all of its branches.

 

R156-78B-16e. Affidavits of Merit - Request for 60-day Extension to File.

(1) In accordance with Subsection 78B-3-423(4), a petitioner's request for a 60-day extension to file an affidavit of merit shall be supported by an affidavit signed by the petitioner's or petitioner's attorney that includes the following text immediately prior to the affiant's signature:

 

TABLE VII

  
       I hereby certify that the claimant is unable to timely

  submit an affidavit of merit as required by Subsection 78B-3-

  423(1) because:

       (1) a statute of limitations would impair the action; and

       (2) the affidavit of merit could not be obtained before the

  expiration of the statute of limitations for the following

  reason or reasons (describe).

       I further certify that this affidavit has been served on each

  respondent in accordance with Section R156-78B-7 on the earlier of:

       (a) the required time frame specified in Subsection 78B-3-

  423(1)(b)(i); or

       (b) the date this affidavit was filed with the Division.

 

(2) Any respondent may submit a response to a request for extension to file an affidavit of merit within five days after the service of the affidavit. Any response shall be in the form of a counter affidavit.

(3) The Division shall review a petitioner's affidavit in support of petitioner's request for a 60-day extension to file an affidavit of merit and respondent's counter affidavit, if any, and render a determination within 15 days after the filing of the request.

 

KEY: medical malpractice, prelitigation, certificate of compliance, affidavit of merit

Date of Enactment or Last Substantive Amendment: [January 21, 2010]2011

Notice of Continuation: April 9, 2007

Authorizing, and Implemented or Interpreted Law: 78B-3-416(1)(b)