It pays to go into prelitigation knowing what to expect along the way.
If you’re a licensed medical professional facing a claim, addressing it can feel more than a little like finding yourself “within a forest dark,” to borrow from Dante. But there is a light in the forest. With a little background the process is both comprehensible and navigable.
The key to understanding the prelitigation process is to understand the prelitigation panel hearing.
The Utah Health Care Malpractice Act governs negligence and malpractice claims against those licensed to provide medical services in Utah. A main provision of that act is a preliminary review of medical malpractice claims before a lawsuit may be filed in a court of law. This preliminary review is known as the prelitigation panel hearing. In Utah, claims against health care providers are heard first by a prelitigation panel before a lawsuit can be filed.
The Prelitigation Panel Hearing
Claims against the medical professional are reviewed by a panel consisting of an attorney (representing the viewpoints of a judge), a lay member of the community (representing the viewpoints of a jury), and a medical professional of the same specialty as the professional facing the claim (representing viewpoints of a medical expert).
The hearing is non-binding, non-public, and informal. Parties are permitted to be represented by legal counsel, but cross examination by either side is not allowed. Each side presents its theories and versions of the facts, and the only questioning permitted are those by the panelists themselves—usually for clarification. At the end of the hearing, the panel meets privately to discuss the claims and that same day will issue a verbal decision whether the claims are determined to be meritorious or non-meritorious. A written decision with more detailed reasoning follows some weeks later.
A meritorious finding results in a certificate of compliance with the prelitigation requirements, and the claim may be filed with the courts with no further impediment. In the case that the claim is determined to be non-meritorious, the claimant must first obtain an expert affidavit in support of the claim before filing suit. This is not an onerous obstacle, but it does entail some expense for the claimant and provides a great opportunity to review whether to invest time and money into a claim already informally determined to be meritless by impartial individuals.
Ultimately, the panel hearing can be a very helpful way for both sides to get an impartial view of the case early on. It helps to manage expectations, and a certain number of claims resolve through the process itself without formal litigation ever commencing.
How a Claim Gets to the Prelitigation Panel Hearing
The process begins when the medical professional receives a Notice of Intent to Commence Action from the claimant. Upon the receipt of such notice, the medical professional should notify his or her malpractice carrier immediately. No formal response to the notice is necessary, but counsel for the professional will file an entry of appearance once the claimant requests prelitigation panel review. The prelitigation section provides limited subpoena power to obtain medical records related to the claimant for use at the prelitigation panel hearing. Please note that this subpoena power is limited to medical records. Employment and schooling records, which may be relevant to a person’s physical condition, cannot be obtained until litigation in the courts has commenced. Again, this is consistent with the purpose of prelitigation, which is to provide initial review of the key claims and defenses without having to incur the expenses of formal litigation.
As the hearing date approaches, the prelitigation section of the Division of Occupational and Professional Licensing (DOPL) will send out a list of the individuals who will be serving on the panel. This provides both sides with a chance to review the panelists beforehand to ensure impartiality.
The hearing itself typically takes place in a conference room in the Heber M. Wells building at 160 East 300 South in downtown Salt Lake City, where DOPL maintains its offices, and usually lasts less than two hours. The proceedings themselves are not admissible in evidence in subsequent litigation.
Alternatives to Prelitigation
There are cases in which the prelitigation process may be circumvented, such as both sides agreeing to dispense with the hearing. The professional and the patient may also have entered into a binding arbitration agreement, under which the claims will be decided by an arbitrator or panel of arbitrators. Be aware there is legal authority suggesting that arbitration and prelitigation can be mutually inconsistent and that substantial participation in one may bar subsequently changing course to participate in the other.
The best course for each individual will depend on the unique circumstances of the specific claims. If you would like to discuss your specific practice or how to navigate or avoid prelitigation, we are happy to answer your questions.
 Utah’s Health Care Malpractice Act defines health care providers to include hospitals, health care facilities, physicians, nurses, midwives, dentists, hygienists, optometrists, laboratory techs, pharmacists, therapists, psychologists, chiropractors, osteopaths, audiologists, speech-language pathologists, social workers, family counselors, licensed athletic trainers, “or others rendering similar care and services.”
 Please note that there is a statutory exception for dentists, who are not subject to prelitigation panel hearings. That being said, certain claims against the dental practice rather than the dentist personally may still go through prelitigation.
Michael D. Lichfield