Prelitigation

Prelitigation review panels in alleged medical liability cases against health care providers are required under Title 78B, Chapter3, Part 4, of the Utah Code Annotated. The administrative rules applicable to prelitigation review panels are found in Section R156-78B of the Utah Administrative Code. A review of these statutes and regulations is recommended in order to become familiar with the legal requirements applicable to the prelitigation panel review process.

The prelitigation panel that will hear cases consists of:

• an attorney who serves as chairperson of the panel
• a lay member who is not a health care provider, hospital employee, or attorney
• a licensed health care provider practicing in each specialty in which each respondent health care provider practices
• a hospital administrator, if a hospital or its employees is named as a respondent

Prelitigation panel hearings are informal and non-binding. They are confidential and not open to the public. Formal rules of evidence, such as those applicable in a court proceeding, do not apply to panel hearings. Unless extraordinary circumstances exist, the hearing is not recorded. There exists no right of cross-examination by the parties or their counsel, and the findings of the panel are not admissible in evidence in any subsequent court proceeding.

Prelitigation panel hearings are helpful to the parties in evaluating the strengths and weaknesses of their cases. Having a panel of impartial panelists review the evidence and assess the merits of each party's claims affords the parties and their attorneys an opportunity to make valuable decisions on whether or how to continue to pursue or defend a case.

With this in mind, the following suggestions are provided to facilitate the presentation of a case at a panel hearing:

1. Prepare a written summary or outline of the case to present to the panel, with appropriate references to medical records, treatises, and other supporting documentary evidence. Remember, although the case petitioner may be intimately familiar with the facts of the case, the panel is hearing about it for the first time. A simple, but adequate, explanation of the medical procedures involved in the case and the factual basis for the claim or defense is most helpful to the panel in analyzing the claim.
2. Provide copies of all relevant documentary evidence to all panel members (and opposing counsel), highlighting the pertinent portions.
3. Where appropriate, provide testimony from the parties and verbal explanations relevant to the case.
4. Be prepared to answer questions from the panel, explain the theories of the case, and provide medical explanations in response to inquiries from panel members.
5. Avoid verbal sparring or other confrontational conduct. Although the hearing is informal, the same rules of decorum and personal conduct that attend a court proceeding should be observed before the panel. Since emotions may at times run high during a hearing, and because the parties and their attorneys are in close physical proximity, it may be tempting to make comments or criticisms that would be inappropriate in a more formal setting. Such behavior rarely helps the panel carry out its purposes.
6. Once the hearing is concluded, the panel will make a decision on the merits of the petitioner's claim. That finding, along with a panel opinion prepared by the attorney-chairperson, will be filed within 30 days of the hearing.