§ 78B-3-416 — Division to provide review panel -- Exemption -- Procedures -- Statute of limitations tolled -- Composition of panel -- Expenses -- Division authorized to set license fees.

(1) (1)(a) The division shall provide a prelitigation review panel to conduct a panel review in accordance with this part, in all malpractice actions against a health care provider, except dentists or dental care providers.
(1)(b) (1)(b)(i) The division shall establish procedures for panel reviews.
(1)(b)(ii) The division may establish rules necessary to administer the process and procedures related to a panel review and the conduct of a member of a prelitigation review panel or participant in a panel review in accordance with Sections 78B-3-416 through 78B-3-420.
(1)(c) A panel review is informal, nonbinding, and not subject to Title 63G, Chapter 4, Administrative Procedures Act, but is compulsory as a condition precedent to commencing litigation.
(1)(d) A panel review that is conducted under authority of this section is confidential, privileged, and immune from civil process.
(1)(e) The division may not provide more than one review panel for each alleged malpractice action against a health care provider.
(2) (2)(a) The party initiating a malpractice action against a health care provider shall file a request for a prelitigation panel review with the division within 60 days after the service of a statutory notice of intent to commence action under Section 78B-3-412.
(2)(b) The request shall include a copy of the notice of intent to commence action and the claimant shall mail the request and notice of intent to all health care providers named in the notice and request.
(3) (3)(a) As used in this Subsection (3):
(3)(a)(i) "Court-appointed therapist" means a mental health therapist ordered by a court to provide psychotherapeutic treatment to an individual, a couple, or a family in a domestic case.
(3)(a)(ii) "Domestic case" means a proceeding under:
(3)(a)(ii)(A) Chapter 7, Protective Orders and Stalking Injunctions;
(3)(a)(ii)(B) Title 81, Chapter 4, Dissolution of Marriage;
(3)(a)(ii)(C) Title 81, Chapter 5, Uniform Parentage Act;
(3)(a)(ii)(D) Title 81, Chapter 9, Custody, Parent-time, and Visitation; or
(3)(a)(ii)(E) Title 81, Chapter 11, Uniform Child Custody Jurisdiction and Enforcement Act.
(3)(a)(iii) "Mental health therapist" means the same as that term is defined in Section 58-60-102.
(3)(b) If a court appoints a court-appointed therapist in a domestic case, a party to the domestic case may not file a request for a prelitigation panel review for a malpractice action against the court-appointed therapist during the pendency of the domestic case, unless:
(3)(b)(i) the party has requested that the court release the court-appointed therapist from the appointment; and
(3)(b)(ii) the court finds good cause to release the court-appointed therapist from the appointment.
(3)(c) If a party is prohibited from filing a request for a panel review under Subsection (3)(b), the applicable statute of limitations tolls until the earlier of:
(3)(c)(i) the court releasing the court-appointed therapist from the appointment as described in Subsection (3)(b); or
(3)(c)(ii) the court entering a final order in the domestic case.
(4) (4)(a) The filing of a request for a prelitigation panel review under this section tolls the applicable statute of limitations until the later of:
(4)(a)(i) 60 days following the division's issuance of:
(4)(a)(i)(A) an opinion by the review panel; or
(4)(a)(i)(B) a certificate of compliance under Section 78B-3-418; or
(4)(a)(ii) the expiration of the time for holding a panel review under Subsection (4)(b)(ii).
(4)(b) The division shall:
(4)(b)(i) send any opinion issued by the panel to all parties by regular mail; and
(4)(b)(ii) complete a panel review under this section within:
(4)(b)(ii)(A) 180 days after the filing of the request for prelitigation panel review; or
(4)(b)(ii)(B) any longer period as agreed upon in writing by all parties to the review.
(4)(c) If a panel review does not occur within the time limits under Subsection (4)(b)(ii), the claimant or respondent may, no later than 180 days after the day on which the request for a panel review was filed under Subsection (2), file with the division an affidavit alleging with supporting attachments, if any:
(4)(c)(i) that the claimant or respondent failed to reasonably cooperate in scheduling the panel review; or
(4)(c)(ii) any other reason that the panel review did not occur within the time limits under Subsection (4)(b)(ii).
(4)(d) If the claimant or respondent files an affidavit under Subsection (4)(c):
(4)(d)(i) within 15 days of the filing of the affidavit, the division shall conclude, based solely on the affidavit and any supporting attachments, whether the claimant or respondent failed to reasonably cooperate in the scheduling of the panel review; and
(4)(d)(ii) (4)(d)(ii)(A) if the division finds that the claimant or respondent did not fail to reasonably cooperate, the division shall issue a certificate of compliance for the claimant in accordance with Subsection 78B-3-418(3)(b), stating the division's determination and the facts upon which the determination is based; or
(4)(d)(ii)(B) if the division makes a determination other than the determination in Subsection (4)(d)(ii)(A), the division shall, subject to Subsection (4)(f), issue a certificate of compliance for the claimant, in accordance with Subsection 78B-3-418(3)(b), stating the division's determination and the facts upon which the determination is based.
(4)(e) (4)(e)(i) The claimant and any respondent may agree by written stipulation to waive the requirement to convene a panel review under this section.
(4)(e)(ii) When the stipulation is filed with the division, the division shall within 10 days after receipt issue a certificate of compliance under Subsection 78B-3-418(3)(c), as it concerns the stipulating respondent, and stating that the claimant has satisfied, by stipulation, the condition precedent under Subsection (1)(c) to commencing litigation.
(4)(f) The division may not issue a certificate of compliance if the division finds under Subsection (4)(d)(ii)(B) that the claimant failed to reasonably cooperate in the scheduling of the panel review.
(5) The division shall provide for and appoint an appropriate panel to consider complaints of medical liability and damages, made by or on behalf of any patient who is an alleged victim of malpractice. The panels are composed of:
(5)(a) one member who is a resident lawyer currently licensed and in good standing to practice law in this state and who shall serve as chairman of the panel, who is appointed by the division from among qualified individuals who have registered with the division indicating a willingness to serve as panel members, and a willingness to comply with the rules of professional conduct governing lawyers in the state, and who has completed division training regarding conduct of panel reviews;
(5)(b) (5)(b)(i) one or more members who are licensed health care providers listed under Section 78B-3-403, who are practicing and knowledgeable in the same specialty as the proposed respondent, and who are appointed by the division in accordance with Subsection (6); or
(5)(b)(ii) in claims against only a health care facility or the facility's employees, one member who is an individual currently serving in a health care facility administration position directly related to health care facility operations or conduct that includes responsibility for the area of practice that is the subject of the liability claim, and who is appointed by the division; and
(5)(c) a lay panelist who is not a lawyer, doctor, hospital employee, or other health care provider, and who is a responsible citizen of the state, selected and appointed by the division from among individuals who have completed division training with respect to panel reviews.
(6) (6)(a) Each person listed as a health care provider in Section 78B-3-403 and practicing under a license issued by the state, is obligated as a condition of holding that license to participate as a member of a prelitigation review panel at reasonable times, places, and intervals, upon issuance, with advance notice given in a reasonable time frame, by the division of an Order to Participate as a Medical Liability Prelitigation Panel Member.
(6)(b) A licensee may be excused from appearance and participation as a panel member upon the division finding participation by the licensee will create an unreasonable burden or hardship upon the licensee.
(6)(c) A licensee who the division finds failed to appear and participate as a panel member when so ordered, without adequate explanation or justification and without being excused for cause by the division, may be assessed an administrative fine not to exceed $5,000.
(6)(d) A licensee who the division finds intentionally or repeatedly failed to appear and participate as a panel member when so ordered, without adequate explanation or justification and without being excused for cause by the division, may be assessed an administrative fine not to exceed $5,000, and is guilty of unprofessional conduct.
(6)(e) All fines collected under Subsections (6)(c) and (d) shall be deposited into the Physicians Education Fund created in Section 58-67a-1.
(6)(f) The director of the division may collect a fine that is not paid by:
(6)(f)(i) referring the matter to a collection agency; or
(6)(f)(ii) bringing an action in the district court of the county where the person against whom the penalty is imposed resides or in the county where the office of the director is located.
(6)(g) A county attorney or the attorney general of the state shall provide legal assistance and advice to the director in an action to collect a fine.
(6)(h) A court shall award reasonable attorney fees and costs to the prevailing party in an action brought by the division to collect a fine.
(7) Each person selected as a panel member shall certify, under oath, that the member has no bias or conflict of interest with respect to any matter under consideration.
(8) A member of a prelitigation review panel may not receive compensation or benefits for the member's service, but may receive per diem and travel expenses in accordance with:
(8)(a) Section 63A-3-106;
(8)(b) Section 63A-3-107; and
(8)(c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and 63A-3-107.
(9) (9)(a) In addition to the actual cost of administering the licensure of health care providers, the division may set license fees of health care providers within the limits established by law equal to their proportionate costs of administering prelitigation panels.
(9)(b) The claimant bears none of the costs of administering the prelitigation panel except under Section 78B-3-420.

Legislative History

Amended by Chapter 426, 2025 General Session