No. 43251 (Amendment): Rule R156-78B. Prelitigation Panel Review Rule

(Amendment)

DAR File No.: 43251
Filed: 10/11/2018 11:02:23 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

S.B. 223 (2018) amended the Utah Health Care Malpractice Act (Title 78B, Chapter 3, Part 4) to require the Division of Occupational and Professional Licensing (Division) to compile certain information related to medical liability prelitigation proceedings, and authorized the Division to gather that information from various persons involved in the proceedings. These proposed amendments will allow the Division to carry out this mandate. Additionally, these proposed amendments update the rule for clarity and to encompass current requirements.

Summary of the rule or change:

In Section R156-78B-6, these proposed amendments make nonsubstantive formatting changes for clarity. In Section R156-78B-16a, these proposed amendments clarify that an affidavit of merit must identify by name each respondent included in the affidavit. In Section R156-78B-16b, these proposed amendments require a claimant (or claimant's attorney) who signs an affidavit of merit to: 1) identify by name each respondent included in the affidavit; and 2) certify that if the affiant files an action in court against a respondent, the affiant will notify the Division of that action within 60 days of the filing as required by Section R156-78B-17. In Section R156-78B-16c, these proposed amendments: 1) require a health care provider who signs an affidavit of merit to describe the affiant's license class and professional specialty; and 2) clarify that the affidavit of merit must identify by name each respondent included in the affidavit and describe the health care provider's opinion for the named respondent. In Section R156-78B-16d, these proposed amendments remove certain references to Title 58 licensing, to conform this rule to Subsection 78B-4-423(4) as amended by S.B. 223 (2018). In Section R156-78B-16e, these proposed amendments make nonsubstantive formatting changes for clarity. Section R156-78B-17 is a new section that requires a claimant who files an action in court against a respondent to give the Division written notice of that action within 60 days of filing. The notice must identify the date of filing, the court, and the name of the respondent.

Statutory or constitutional authorization for this rule:

Subsection 78B-3-416(1)(b)

Anticipated cost or savings to:

the state budget:

No impact to the state is expected from these proposed changes, beyond a minimal cost to the Division of approximately $75 to print and distribute this rule once the changes are made effective. The proposed new Section R156-78B-17 requiring a claimant to notify the Division of the filing of a court action, and the amendment to Section R156-78B-16c requiring an affiant health care provider to state license class and professional specialty, are based on the mandates of S.B. 223 (2018) and therefore, the Division estimates that there should be no impact from these changes over and above that already included in the fiscal note for S.B. 223 (2018), available online at https://le.utah.gov/~2018/bills/static/SB0223.html. The remainder of these proposed changes only update this rule and clarify current requirements, and so are not expected to impact state government revenues or expenditures.

local governments:

No impact to local governments is expected from these proposed changes. The proposed new Section R156-78B-17 requiring a claimant to notify the Division of the filing of a court action, and the amendment to Section R156-78B-16c requiring an affiant health care provider to state license class and professional specialty, are based on the mandates of S.B. 223 (2018) and therefore, the Division estimates that there should be no impact from these changes over and above that already included in the fiscal note for S.B. 223 (2018), available online at https://le.utah.gov/~2018/bills/static/SB0223.html. The remainder of these proposed changes only update this rule and clarify current requirements, and so are not expected to impact local government revenues or expenditures.

small businesses:

No direct or indirect impact to small businesses is expected from these proposed changes. There are approximately 9,421 small businesses in Utah's health care industry that could be affected if they or their owners are hired to provide an affidavit of merit in prelitigation proceedings. (Broadly, this could include most small businesses categorized under NAICS 62; for a complete listing of NAICS Codes used in this analysis, please contact the Division.) However, these changes will not affect the price or quantity of any exchanges involving these small businesses, as they only clarify existing requirements or carry out the mandates of S.B. 223 (2018) and will have no impact over and above that already included in the fiscal note for S.B. 223 (2018), available online at https://le.utah.gov/~2018/bills/static/SB0223.html.

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

No impact on other persons is expected from these proposed changes. These changes may affect claimants and health care providers who prepare affidavits of merit for prelitigation proceedings, as the changes clarify that claimants and health care providers must identify respondents by name, and require providers to state their license class and professional specialty. The proposed new Section R156-78B-17 requiring claimants to notify the Division of a court action will affect claimants who file an action against a respondent after completing prelitigation proceedings. However, because these proposed changes only clarify existing requirements or carry out the mandates of S.B. 223 (2018), the Division estimates that these changes will have no impact on other persons over and above that already included in the fiscal note for S.B. 223 (2018), available online at https://le.utah.gov/~2018/bills/static/SB0223.html.

Compliance costs for affected persons:

No compliance costs for affected persons is expected from these proposed changes. These changes may affect a claimant or a health care provider who prepares an affidavit of merit for prelitigation proceedings, as these changes clarify that claimants and health care providers must identify respondents by name, and require providers to state their license class and professional specialty. The proposed new Section R156-78B-17 requiring claimants to notify the Division of a court action will affect a claimant who files an action against a respondent after completing prelitigation proceedings. However, because these proposed changes only clarify existing requirements or carry out the mandates of S.B. 223 (2018), the Division estimates that these changes will have no compliance costs for any of these affected persons over and above that already included in the fiscal note for S.B. 223 (2018), available online at https://le.utah.gov/~2018/bills/static/SB0223.html.

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

In Section R156-78B-6 and Section R156-78B-16e, these proposed amendments make nonsubstantive formatting changes for clarity. In Section R156-78B-16a, these proposed amendments clarify that an affidavit of merit must identify by name each respondent included in the affidavit. In Section R156-78B-16b, these proposed amendments require a claimant (or claimant's attorney) who signs an affidavit of merit to: 1) identify by name each respondent included in the affidavit; and 2) certify that if the affiant files an action in court against a respondent, the affiant will notify the Division of that action within 60 days of the filing as required by Section R156-78B-17. In Section R156-78B-16c, these proposed amendments: 1) require a health care provider who signs an affidavit of merit to describe the affiant's license class and professional specialty; and 2) clarify that the affidavit of merit must identify by name each respondent included in the affidavit and describe the health care provider's opinion for the named respondent. In Section R156-78B-16d, these proposed amendments remove certain references to Title 58 licensing, to conform this rule to Subsection 78B-4-423(4) as amended by S.B. 223 (2018). The new Section R156-78B-17 requires a claimant who files an action in court against a respondent to give the Division written notice of that action within 60 days of filing. The notice must identify the date of filing, the court, and the name of the respondent. No direct or indirect impact to small businesses is expected from these proposed changes. There are approximately 9,421 small businesses in Utah's health care industry that could be affected if they or their owners are hired to provide an affidavit of merit in prelitigation proceedings. Broadly, this could include most small businesses categorized under NAICS 62. However, these changes will not affect the price or quantity of any exchanges involving small businesses, as they only clarify existing requirements or carry out the mandates of S.B. 223 (2018) and will have no impact over and above that already included in the fiscal note for S.B. 223 (2018), available online at https://le.utah.gov/~2018/bills/static/SB0223.html. No direct or indirect impact to non-small businesses is expected from these proposed changes. There are approximately 488 non-small businesses in Utah's health care industry that could be affected if they or their owners are hired to provide an affidavit of merit in prelitigation proceedings. However, these changes will not affect the price or quantity of any exchanges involving these non-small businesses, as they only clarify existing requirements or carry out the mandates of S.B. 223 (2018) and will have no impact over and above that already included in the fiscal note for S.B. 223 (2018), available online at https://le.utah.gov/~2018/bills/static/SB0223.html.

Francine A. Giani, Executive Director

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

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

Direct questions regarding this rule to:

Adele Bancroft-Eklund at the above address, by phone at 801-530-6990, by FAX at 801-530-6511, or by Internet E-mail at abancroft@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:

12/03/2018

Interested persons may attend a public hearing regarding this rule:

11/07/2018 09:30 AM, Heber Wells Bldg, 160 E 300 S, Hearing Room 250 (second floor), Salt Lake City, UT

This rule may become effective on:

12/10/2018

Authorized by:

Mark Steinagel, Director

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2019

FY 2020

FY 2021

State Government

Local Government

Small Businesses

Non-Small Businesses

Other Person

Total Fiscal Costs:

Fiscal Benefits

State Government

Local Government

Small Businesses

Non-Small Businesses

Other Persons

Total Fiscal Benefits:

Net Fiscal Benefits:

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non - Small Businesses are described below.

Appendix 2: Regulatory Impact to Non - Small Businesses (50 or more employees)

No direct or indirect impact to non-small businesses is expected from these proposed changes. There are approximately 488 non-small businesses in Utah's health care industry that could be affected if they or their owners are hired to provide an affidavit of merit in prelitigation proceedings. Broadly, this could include most non-small businesses categorized under NAICS 62 (for a complete listing of NAICS Codes used in this analysis, please contact the Division). However, these changes will not affect the price or quantity of any exchanges involving these non-small businesses, as they only clarify existing requirements or carry out the mandates of S.B. 223 (2018) and will have no impact over and above that already included in the fiscal note for S.B. 223 (2018), available online at https://le.utah.gov/~2018/bills/static/SB0223.html.

Agency sign off: The head of the Department of Commerce, Francine A. Giani, has reviewed and approved this fiscal analysis.

R156. Commerce, Occupational and Professional Licensing.

R156-78B. Prelitigation Panel Review Rule.

R156-78B-6. Pleadings.

(1) Docket Number and Title.

Upon receipt of a timely Request for Prelitigation Review, the 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 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.

(a) Pleadings [~~must~~]shall

(i) be double-spaced and typewritten and presented on standard 8 1/2" x 11" white paper;[~~. They must~~]

(ii) identify the proceeding by title and docket number, if known[,]; and

(iii) [~~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.

(b) A request shall[,]:

(i) by affirmation, set forth the date that the required notice was served ;[~~, shall~~ ]

(ii) include a copy of the notice; and[~~shall~~]

(iii) reflect service of the request upon all parties named in the notice and request.

(c) [~~When~~]If a petitioner fails to attach a copy of the notice to petitioner's request, the 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~~]the 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~~]the signer's 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.

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

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

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[,]:

(a) one executed by [~~counsel~~]the claimant's attorney or by a pro se claimant as required by Subsection 78B-3-423(2)(a); and

(b) 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:

(a) comply with Section R156-78B-6 governing pleadings and Section R156-78B-7 governing filings and service; and

(b) identify by name each respondent included in the affidavit.

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

Each affidavit of merit executed by [~~counsel~~]the claimant's attorney 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]   1. that I have consulted with and[  
] reviewed the facts of the case with a[n  appropriate] health care[  
] provider (or providers) who meet(s) the requirements of Utah Code Subsection 78B-3-416(4);[  and]  
2. 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 with respect to (identify by  name each respondent included in the affidavit(s) of merit);  and 3. that if I file an action in court against a respondent, I will notify the Division within 60 days of the filing in  accordance with Utah Administrative Code R156-78B-17.  [  ]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 Utah Code Subsection[   ] 78B-3-423([3]4).  My license class and professional specialty are: (describe).      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) In my opinion, there[There] are reasonable grounds  to believe that the[  ] applicable standard of care was breached  by the following respondent(s): (identify by name each respondent  included in the affidavit). 
     (2) In my opinion, the[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 for each respondent named in the  affidavit).

(2) As provided by Subsection 78B-3-423[~~(2)(c)~~](3), 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~~]signs an affidavit of merit under Subsection 78B-3-423([3]4) 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]5), 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~~]claimant or the claimant'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 named 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 an [~~petitioner's~~ ]affidavit in support of [~~petitioner's~~]a claimant'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.

R156-78B-17. Notice to Division of Court Action.

(1) If a claimant files an action in court against a respondent, the claimant shall give the Division written notice of that action within 60 days of the filing.

(2) The notice shall identify:

(a) the filing date;

(b) the court; and

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

Date of Enactment or Last Substantive Amendment: [~~November 8, 2011~~]2018

Notice of Continuation: January 10, 2017

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

Visit the Official Version

Document Information

Hearing Meeting:: 11/07/2018 09:30 AM, Heber Wells Bldg, 160 E 300 S, Hearing Room 250 (second floor), Salt Lake City, UT
Effective Date:: 12/10/2018
Publication Date:: 11/01/2018
Type:: Notices of Proposed Rules
Filed Date:: 10/11/2018
Agencies:: Commerce, Occupational and Professional Licensing
Rulemaking Authority:: Subsection 78B-3-416(1)(b)
Authorized By:: Mark Steinagel, Director
DAR File No.:: 43251
Summary:: In Section R156-78B-6, these proposed amendments make nonsubstantive formatting changes for clarity. In Section R156-78B-16a, these proposed amendments clarify that an affidavit of merit must identify by name each respondent included in the affidavit. In Section R156-78B-16b, these proposed amendments require a claimant (or claimant's attorney) who signs an affidavit of merit to: 1) identify by name each respondent included in the affidavit; and 2) certify that if the affiant files an action ...
CodeNo:: R156-78B
CodeName:: {45148|R156-78B|R156-78B. Prelitigation Panel Review Rule}
Link Address:: CommerceOccupational and Professional LicensingHEBER M WELLS BLDG160 E 300 SSALT LAKE CITY, UT 84111-2316
Link Way:: Adele Bancroft-Eklund, by phone at 801-530-6990, by FAX at 801-530-6511, or by Internet E-mail at abancroft@utah.gov
AdditionalInfo:: More information about a Notice of Proposed Rule is available online. The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull_pdf/2018/b20181101.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version. Text to be deleted is struck through and surrounded by brackets ([example]). Text ...
Related Chapter/Rule NO.: (1): R156-78B. Prelitigation Panel Review Rule.