How Utah’s secretive medical malpractice panels make it even harder to sue health care workers

Prelitigation panels are meant to judge the merit of a complaint against a provider ahead of a lawsuit. But some attorneys see them as “nothing more than an obstruction” for victims.

(Chloe Cushman, special to ProPublica)

Editor’s note: This article was produced for ProPublica’s Local Reporting Network in partnership with The Salt Lake Tribune. This story discusses sexual assault.

Jessica Lancaster didn’t want to tell the panel of three strangers in front of her about the moment her chiropractor insisted she lift up her shirt.

How Kelby Martin’s breathing became heavier as he groped her breasts, which had been healing from surgery; how after he touched her chest, he didn’t follow through with any type of chiropractic treatment; how she left his office in August 2021 in a haze.

But Lancaster wanted to sue Martin to hold him accountable, and before she could do that, Utah law required her to make her case to the panel.

The panel concluded last August that Martin had departed from the normal standard of care, Lancaster’s lawyers later disclosed in a court filing. In response to a request for comment, Martin’s lawyer pointed to court papers in which the chiropractor denied Lancaster’s allegations against him. The case is pending; his license remains in good standing with the state.

There was a time when a majority of states had adopted malpractice screening panels in some form. A 1984 analysis by the American Medical Association found 30 states had implemented panels at some point. The goal was to cut down on frivolous lawsuits and encourage settlements of legitimate claims.

Over the years, many of those states found these panels ineffective or in violation of their constitutions, and some did away with them entirely. But Utah remains one of 16 states where patients still must spend time, money for legal services and emotional energy recounting to a panel how a medical professional they trusted hurt them, according to a tally from the National Conference of State Legislatures. The Utah system has processed, on average, about 300 cases per year for much of the last decade, according to state data.

“It’s just one more time we have to tell our story,” Lancaster said. “We relive it. I think it’s so unnecessary.”

That extra step is mandated but can feel pointless to plaintiffs. Even if the Utah panel says a claim is meritless, they remain free to sue, and several attorneys told The Salt Lake Tribune and ProPublica they routinely go on to win jury verdicts or settlements in such cases.

Medical providers contend the process has a purpose. Michelle McOmber, CEO of the Utah Medical Association, said it’s common for potential plaintiffs to accuse a broad range of providers. The information sharing that happens during a panel hearing, she said, can help both sides focus on those who may have harmed the patient.

The state agency that administers the panels also asserts that they are “highly effective in ferreting out frivolous claims, as it is rare for a case deemed without merit to move forward,” said Melanie Hall, spokesperson for the Utah Department of Commerce’s Division of Occupational Licensing. The division’s data shows that over the last decade, only 4% of the cases considered by the panels were considered meritorious.

But there is no way to independently assess DOPL’s claim that nonmeritorious claims rarely move forward — because Utah is one of six states where panel rulings are kept secret from the public. And state lawmakers have not asked the division to track how cases are resolved after a panel’s judgment.

Utah law does require DOPL to compile whether claims heard by the panels are later filed as lawsuits. But it is not compiling this data, division director Mark Steinegal said in an email responding to The Tribune’s request for that data.

No one in Utah — including legislative auditors — has been able to prove that the prelitigation panels are effective at reducing litigation.

(Trent Nelson | The Salt Lake Tribune) Prelitigation panel hearings are held in a conference room at the The Heber Wells Building in Salt Lake City.

Soon, sexual assault victims who say they have been harmed by medical workers will become exempt from this process. Last month, the Utah Legislature passed and Gov. Spencer Cox signed a bill clarifying that sexual assault is not considered health care, and such claims are not governed by the state’s medical malpractice act. So those who say they have been harmed after the law goes into effect — May 3 — will be able to file civil lawsuits against alleged abusers without appearing before a panel.

The new law followed a recent investigation by The Tribune and ProPublica that detailed how patients who say they were sexually assaulted by providers faced more hurdles and were treated more harshly in Utah’s civil courts than those abused in other settings.

Now some are calling for the state to abandon the panels altogether. Those critics, mostly personal injury lawyers, say it’s time for Utah to overhaul its system.

“It’s often being used as a tool to make access to justice for individuals harder, more expensive and more time-consuming,” said Jeff Gooch, a Utah personal injury attorney who has also worked as the chair of a prelitigation panel.

An ‘arbitrary delay’ or helpful process?

Beginning in the 1970s, most states adopted some type of screening step for those who want to sue a health care provider — one of several reforms made in response to fears that the cost of health care was rising because of an increase in civil lawsuits and “runaway juries” doling out multimillion-dollar payouts.

But it became clear the system wasn’t always working the way it was intended. In 1979, Missouri’s Supreme Court ended its panel process after finding it caused a “useless and arbitrary delay.” And in 2019, Kentucky’s high court struck down its law after it had been in effect for just a year, finding it caused an unconstitutional delay in people’s ability to access the courts.

Since the panels were added to Utah’s medical malpractice law in 1985, no one, including state auditors, has been able to show whether they have had a meaningful impact on weeding out frivolous cases or reducing the number of medical malpractice cases filed.

(Trent Nelson | The Salt Lake Tribune) Prelitigation panel hearings are held in this conference room at the Department of Commerce in the Heber Wells Building in Salt Lake City.

One Brigham Young University law school study from 1989 surveyed Utah attorneys who had participated in panels in their first two years of existence. The researchers concluded that the program was ineffective: They found that an overwhelming majority of the attorneys surveyed “stated that their opinion of the case did not change as a result of the hearing.”

“The procedure does not foster settlement,” one attorney wrote in a survey response. “It only gives the medical provider more protection by the mandated steps required before litigation can be pursued. It is another way for medical providers to avoid liability. I believe it should be done away with.”

Five years after that study was published, Utah legislative auditors took a look at the panel process. Their 1994 audit found that only 8% of the cases that were reviewed by Utah’s panel during a five-year period beginning in 1985 were settled before a lawsuit was filed. Some 60% went to court. The remaining cases were dropped without being filed in court.

“We could not find an objective way to determine whether the prelitigation process has been a success,” the auditors concluded.

Utah legislators in 2010 put an extra hurdle into the prelitigation panel process: Patients who wanted to file a lawsuit after receiving a “nonmeritorious” opinion had to find an expert who would disagree with the panel and explain why their case had merit — a process that could cost thousands of dollars. That added obstacle remained in place for nearly a decade until the Utah Supreme Court in 2019 found it unconstitutionally blocked access to the courts.

Despite no concrete evidence of the panels’ effectiveness, Steinegal said the feedback he has gotten from attorneys suggests that the prelitigation process is valuable.

“I have heard from both plaintiffs and counsel for defendants that the process is effective in achieving early discovery of the issues, long before the formal procedures that take place in court,” he said. He added that the process is worthwhile “if for no other reason than it accelerates information-sharing.”

Brian Craig, the current prelitigation panel chair, echoed Steinegal’s assertion that the panels ferret out frivolous cases. In a recent Utah Bar Journal article he authored, Craig gave the example of a woman who claimed that the physician who removed her appendix also removed one of her ovaries. A later ultrasound, he said, showed that she still had two ovaries.

‘The cards are stacked against you’

Several attorneys who spoke to The Tribune and ProPublica said the extra cost and delay caused by the panels provides little benefit.

Gooch thinks the bigger problem is the long wait before a suit can be filed: “Memories fade. Excitement fades. Often people’s lives fade — especially if they’re ill.”

Ed Havas, a personal injury attorney who has practiced in Utah for more than 40 years, said it’s common for attorneys to get a nonmeritorious finding from the prelitigation panel and to go on to win that case, either in a settlement or a jury verdict.

He said attorneys typically move forward because they have reviewed medical records and consulted an expert — and believe they can win. He also pointed out that panel members weigh in before plaintiff attorneys have all the evidence they will seek to support their case, since the disclosure of documents happens after a case gets into court.

The panel is less formal than a court hearing, and potential plaintiffs are not required to join their attorneys in meeting with the panel, like Lancaster did. Still, Craig wrote in his Bar Journal article, “attendance by parties” is viewed favorably by the panel and signals that both sides are taking the process seriously.

Critics also include a state legislator who works as a personal injury attorney and has been a panel member. Utah state Sen. Mike McKell — who introduced the recent law exempting sexual assault in medical settings from malpractice requirements — said there is some benefit for the person suing to get to see how a doctor plans to defend him or herself. But overall, the Republican lawmaker said, “it’s nothing more than an obstruction to a victim who has been hurt due to no fault of their own.”

(Leah Hogsten | The Salt Lake Tribune) Utah state Sen. Mike McKell, R-Spanish Fork, during a session of the Utah Senate on Feb. 24. McKell is a critic of prelitigation panels, where Utahns must present their case before suing under the state’s Health Care Malpractice Act.

“It’s an impediment put into place to create one more barrier for that access to the court,” he added.

McKell said he tries to help his clients understand that while panelists will likely find their claims don’t have merit, that doesn’t mean they have lost their case.

“This is not a fair hearing,” he said he tells his clients. “The cards are stacked against you. You will likely lose your case with the prelitigation panel. That doesn’t mean we don’t believe in your case.”

All panels include an attorney with no connection to the case, a member of the public who has applied to serve and a health care worker in the same specialty as the accused provider. But several attorneys said its members often defer to the opinion of the health care worker in the group who works in the same field as the accused.

In Utah’s small medical community, it’s likely that these people know each other or went to school together.

“You’re asking the profession to judge themselves,” said Ashton Hyde, the legislative chair of a lobbying organization for Utah trial lawyers. “I think the panel itself is a waste.”

Hall, the DOPL spokesperson, pushed back on concerns that the panels could be biased. She said that DOPL has observed that the medical professional on the panel generally holds the accused to a higher level of scrutiny than the other panelists.

“We believe this may reduce bias from the panel members,” she said.

Hyde said he fears if his organization pushes to get rid of the panels, there will be backlash from doctors and hospitals, who could counter by seeking legislative measures that would make the prelitigation process more difficult.

McKell said he contemplated introducing a bill to get rid of the prelitigation panels three years ago, after the Utah Supreme Court ruling limited their use. But he said he opted not to do so after receiving feedback from lawyers who thought the process still had value.

He has no plans to bring future legislation to eliminate the prelitigation panels, he said in a recent interview.

‘This is on my soul’

Lancaster said she left her prelitigation panel meeting hurt after one member asked her questions that she perceived as blaming her for being assaulted. She had trusted Martin for care for more than three years, she said, and when he allegedly assaulted her, it caused “a wound I can’t even explain.” (The finding from Lancaster’s panel hearing only became public because it was disclosed in a court filing that was later amended to remove it.)

Lancaster said she believes the panel should receive additional training to be more sensitive toward those who say they have been hurt.

“It was just a lack of education,” she said. “You don’t blame the victim for someone assaulting” them.

Hall, the spokesperson for DOPL, said that panel members do not currently receive sensitivity training, emphasizing that the division’s role in administering the panels is “clerical.” She said officials expect panel members to be professional and sensitive in their questioning, but said they also need a thorough understanding of the case.

“This may require very direct questions that seem insensitive,” she said.

Because McKell’s new reform exempting sexual assault survivors from medical malpractice requirements is not retroactive, alleged victims like Lancaster will continue to go before prelitigation panels for at least two more years — based on the filing deadlines for medical malpractice cases.

To Lancaster, sharing her story with the panel brought back the trauma she had experienced after the alleged assault.

“This is on my soul,” she said. “It’s on the depths of me that I will spend forever healing and trying to fathom why someone would do this to someone.”

Mollie Simon of ProPublica contributed research.

If you need to report or discuss a sexual assault in Utah, you can call the Rape and Sexual Assault Crisis Line at 801-736-4356. Those who live outside of Utah can reach the National Sexual Assault Hotline at 800-656-4673.

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