Woman Who Never Saw Doctor Claims Mistreatment; More

Wayne J. Guglielmo, MA

Disclosures

August 19, 2019

Medical Review Panel Acted Unconstitutionally, Justices Say

A Utah medical review panel that intended to weed out non-meritorious medical malpractice claims was found to be acting unconstitutionally, reports a story in The Salt Lake Tribune.[2]

In 2010, Utah lawmakers established a panel within the Division of Occupational and Professional Licensing (DOPL) tasked with reviewing medical malpractice claims before they proceeded to court.

If the panel — made up of a medical professional, an attorney, and a layperson — rejected the claim, the claimant had two choices: He or she could either drop the action or identify a physician or other healthcare provider who would certify in a written affidavit that the claim was in fact valid. Even with an affidavit in hand, though, the claimant wasn't guaranteed that his or her action would move forward, as the panel had the legal authority to reject the affidavit if it found fault with its explanation or reasoning.

This is what happened in the case of a Utah woman named Yolanda Vega, who is at the center of the case reviewed by the Utah Supreme Court. Following the 2014 death of her husband after a routine gallbladder removal, Vega took steps to sue Jordan Valley Medical Center, in West Jordan, where the surgery had taken place. Step one, as dictated by state law, was to schedule a pre-litigation hearing before the DOPL panel, which Vega and her attorneys did.

But when that panel ruled against her claim, concluding that it lacked merit, Vega enlisted a doctor to help in her cause. Acknowledging that the medical records in the case were inadequate, the physician nevertheless wrote in an affidavit that the circumstances of Vega's husband's death were "highly suspect."

The panel rejected the doctor's affidavit and requested that it be amended. Despite this, Vega moved forward with her lawsuit, which was dismissed by the trial court because she had failed to obtain the proper DOPL certification.

In reviewing the case on appeal, the Utah Supreme Court found that the pre-trial review process allowed the DOPL panel to "exercise the core judicial function of ordering the final disposition of claims" without judicial review. This, the justices said, was unconstitutional.

"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," Deno Himonas wrote on behalf of his fellow justices in their unanimous opinion.

The Supreme Court ruling struck down the affidavit step but left the original DOPL pre-litigation hearing process in place.

The opinion, however, didn't preclude lawmakers from addressing so-called non-meritorious suits if such suits are judged to be a factor in rising healthcare costs. Whatever remedies lawmakers pass, though, must still pass muster with the Utah Constitution, the court cautioned.

Vega's attorney found the high court's ruling "a very well-reasoned" decision. It "draws a clear line," he said, "between the work that the judiciary should do and what's left over for the other branches of government — which is very, very important."

In keeping with judicial procedure, the case is likely to go back to the trial court to be heard.

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