Today the Utah Supreme Court held that the requirement in a medical malpractice to obtain an “affidavit of merit” is unconstitutional as it results in an impermissible delegation of judicial power to the Department of Professional Licensing.

Vega v. Jordan Valley Medical Center, 2019 UT 35 is a wrongful death action arising out of complications from a gallbladder surgery. The Utah Malpractice act requires plaintiffs to obtain a certificate of compliance from DOPL before filing in district court. Utah Code Sec. 78B-3-412(1)(b). A certificate of compliance can be had in two ways: First, through a “meritorious” decision of the prelitigation panel. Second, after a “nonmeritorious” finding, through an “affidavit of merit” by an expert health care provider stating that there are reasonable grounds to believe that the standard of care was breached, that this breach caused the injury, and giving an explanation for the opinion.

Ms. Vegas went through the prelitigation panel, and her claim was deemed “non-meritorious.” She then obtained an affidavit from a reviewing physician indicating that there were grounds to believe the standard of care had been breached, but the expert could not provide any details due to the inadequacy of the medical record. DOPL determined that this affidavit was inadequate, and refused to issue a certificate of compliance.

​The suit went forward anyway. The defendants promptly moved to dismiss under Utah Code Sec. 78B-3-423(7), which requires the court to dismiss any medical malpractice action lacking a certificate of merit from DOPL. The trial court granted the motion and this appeal followed.

The Supreme Court today held that the certificate of compliance/affidavit of merit requirements violated the separation of powers articles of the Utah Constitution, Article V, Sec. 1:

Article V, Section 1.  [Three departments of government.] 

The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.

The refusal to grant a certificate of compliance by DOPL in this case amounted to an exercise of judicial power– it was a final decision terminating the case, without possibility of appeal or review by anyone other than DOPL. 

“If there is no review or appeal to the courts, then the ruling of the panel is not a recommendation or an opinion– it is an authoritative and final ruling on whether a claim has merit. It is a total disposition of a case, outside the courts, without any standard judicial process or the consent of the parties.”

This is a classic exercise of judicial power, and judicial power belongs exclusively to the courts. Hence, the DOPL affidavit of merit/certificate of compliance scheme is unconstitutional.

What next? The Court has not thrown out the entire prelitigation panel statute, only the requirement for an “affidavit of merit.” That part was added in 2010, and so I expect we will go back to doing things the same way that they were done before– still have prelitigation hearings, but a “non-meritorious” decision will no longer require an “affidavit of merit” before filing the complaint.

Appellant/Plaintiff counsel: Troy L. BooherBeth E. Kennedy, Michael J. Teter, G. Eric NielsonMark W. DahlLena Daggs.

Salt Lake Medical Malpractice Law