Medical Malpractice

Medical Malpractice is a form of professional negligence in which a health care provider deviates from accepted standards of practice in the medical community and causes injury or death to the patient. Despite the fact that it is usually one of the most noted types of negligent lawsuits, in all actuality it only accounts for five (5) percent of all tort lawsuits that go into trial.

The plaintiff is or was the patient, or the legally designated party acting on behalf of the patient, or in the case of a wrongful-death suit the executor or administrator of a deceased patient's estate. The defendant is usually the doctor or surgeon that can be held responsible for their wrongful negligence, however there can be several different types of professionals that can also be held responsible as the defendant. This includes but not limited to: hospitals or outpatient care facilities, nursing home facilities, nurses and nurse practitioners, emergency medical technicians, radiologists, dentists, pharmacies and medical lab facilities.

A plaintiff must establish all four elements of the tort of negligence for a successful medical malpractice claim.

1. A duty was owed: a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
2. A duty was breached: the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors (the doctrine of res ipsa loquitur or the thing speaks for itself).
3. The breach caused an injury: The breach of duty was a proximate cause of the injury.
4. Damages: Without damages (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damages can occur without negligence, for example, when someone dies from a fatal disease

There is only a limited time during which a medical malpractice lawsuit can be filed, this is called a Statute of Limitations. These time limits are set by statute in a common law legal system. In civil law systems, similar provisions are usually part of the civil code or criminal code and are often known collectively as "periods of prescription" or "prescriptive periods." The length of the time period and when that period begins vary per jurisdiction and type of malpractice. Utah's medical malpractice statue is governed by Utah Code Annotated § 78B-3-404, which reads:

78B-3-404. Statute of limitations -- Exceptions -- Application.

1. A malpractice action against a health care provider shall be commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs, but not to exceed four years after the date of the alleged act, omission, neglect, or occurrence.
2. Notwithstanding Subsection (1):
   (a) in an action where the allegation against the health care provider is that a foreign object has been wrongfully left within a patient's body, the claim shall be barred unless commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered, the existence of the foreign object wrongfully left in the patient's body, whichever first occurs; or
   (b) in an action where it is alleged that a patient has been prevented from discovering misconduct on the part of a health care provider because that health care provider has affirmatively acted to fraudulently conceal the alleged misconduct, the claim shall be barred unless commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence, should have discovered the fraudulent concealment, whichever first occurs.
3. The limitations in this section shall apply to all persons, regardless of minority or other legal disability under Section 78B-2-108 or any other provision of the law.

Renumbered and Amended by Chapter 3, 2008 General Session