This is an archived article that was published on sltrib.com in 2008, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Four years after the issue of medical arbitration exploded with controversy on Capitol Hill, it's back.
Rep. Stephen Urquhart, R-St. George, is proposing a new arbitration process he says would make it faster and cheaper to resolve medical malpractice claims under $300,000.
Patients and doctors would lose the power to investigate allegations in detail - by, for example, interviewing each other under oath - but would get a swift decision from an arbitrator who reads the medical records.
While either side could force the other into the process, a dissatisfied patient or doctor could seek a trial in court. But the arbitration decision would be admitted as evidence, and if the court ruling were not significantly different, whoever appealed would pay the other side's attorney fees.
"If you're going to appeal it, you're going to have a little more skin in the game," said Urquhart, who plans to unveil the bill in coming weeks.
The Utah Association for Justice [formerly the Utah Trial Lawyers Association] already opposes it.
"It's legislation in search of a rationale," said Charlie Thronson, a senior partner at the law firm Parsons Behley and Latimer, and vice president of the UAJ. "I don't think it will serve the purpose - as it's currently written - that Rep. Urquhart thinks it might, and I think it might end up being counterproductive in some ways."
'This is clear-cut'
Under current law, anyone suing a health care provider must first present his claim to a pre-litigation panel. That step would be bypassed for those choosing arbitration.
Both sides would send medical records and written legal arguments to an out-of-state arbitrator - a physician with clinical experience and the backing of a university. The sides would split the $10,000 to $20,000 fee.
The arbitrator's decision would be sent back to a Utah mediator, who would help the two sides hash out a settlement.
Brad Parker, an attorney with law firm Parker and McConkie who consulted with Urquhart, said the process would quickly get rid of nonmeritorious claims.
For plaintiffs, too, he said, "it's a way to come in and say, 'This is clear-cut; let's get to the damage issues right away.' "
The process is designed to make justice more accessible, Urquhart said. Many good lawyers, he said, won't take on a medical malpractice case worth less than $100,000 because the costs of litigating are so high.
"The barriers to justice are for many people just too steep," he said.
Mistakes happen
Thronson said that while that's true, Urquhart's proposal is unconstitutional because it allows one party to force arbitration.
"We have a provision in the constitution [that says] the courts of the state of Utah are open to address all grievances," he said.
Equally critical, Thronson added, is the loss of the power to investigate. "Many of the key facts . . . revolve around conversations that are not in the record or key decisions that are made that are not in the record."
Malpractice litigation "is an area where there could and should be some reform," said Dave Gessel, vice president of government relations and legal affairs for the Utah Hospital and Health Systems Association. "I'm just not sure this is the right vehicle."
The bill, Parker conceded, could be changed to allow for one deposition or one sworn, written statement for each side. To go beyond that, however, "just defeats the whole purpose" of streamlining the process.
Urquhart said the system would mirror one already used to handle lower-dollar-amount auto accidents in Utah.
"I don't think that anyone, or many people, would argue justice isn't flowing from the Automobile Arbitration Act," he said. "The intent is to bring the parties to the table on this issue and see if we can't do a better job helping out the providers and helping out the injured parties. Mistakes happen, so let's find a way to quickly deal with them."
In 2003, the Utah Legislature passed a law allowing health care providers to deny treatment to patients who refused to sign arbitration agreements - a move aimed at cutting litigation costs and malpractice insurance premiums.
Later that year, Intermountain Healthcare told 170,000 patients in Salt Lake County and Bountiful to sign such agreements or go elsewhere for care. A citizens group backed by malpractice lawyers campaigned to overturn the law and gathered on Capitol Hill in protest.
The law was repealed the next year.