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Utah Medical Malpractice Law: Know Your Rights

"All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party." --Utah State Constitution, Art. I, § 11 (1896).

The State Constitution guarantees Utah citizens the right to petition the courts for justice. When someone has been injured by medical malpractice, he or she has a right to seek judicial redress. Getting to the courthouse, however, can be a tricky process. Although you are free to represent yourself in court, medical malpractice cases in Utah are extremely complex, and you should seek the assistance of a medical malpractice attorney (http://www.ryanspringer.com/about/). Experienced attorneys can give you answers (http://www.ryanspringer.com/faqs/) about your case. PRE-LITIGATION Before your claims can be heard in court, you must first participate in an administrative, "pre-litigation" hearing before the Division of Occupational and Professional Licensing (http://dopl.utah.gov/) ("DOPL"). To initiate the pre-litigation proceedings (http://dopl.utah.gov/programs/prelit/index.html), there are several technical filing requirements that must be met. Once the proper pleadings are filed, DOPL will schedule a hearing. This hearing, which is required in most medical malpractice cases, is presided over by a panel that includes an attorney, medical professionals, and a lay person. While the formal rules of evidence do not apply, you must still explain the basis for your claims and describe your injuries. Following the hearing, the panel will deliberate and issue a non-binding opinion of "meritorious" or "non-meritorious." DOPL will then issue a "Certificate of Compliance," which is required to have your claim filed with the courts. MEDIATION Mediation (http://en.wikipedia.org/wiki/Mediation) is a form of informal dispute resolution. Following the DOPL proceedings, or at any time during the pendency of a case, the parties may agree to have the dispute mediated. A mediator is a neutral third party, usually with substantial experience in medical malpractice cases. The mediator can help all of the parties to see both sides of the issues, and reach an agreement that is mutually satisfactory. Sometimes, even if an agreement cannot be reached, a mediation session can help the parties to focus on the important issues, such as the quality of the care rendered or the measure of economic damages the malpractice victim can expect. LITIGATION Following the DOPL proceedings, the most common step is for the claim to be filed with the court (http://www.utcourts.gov/). Once a claim has been filed, all of the parties will proceed with "discovery." This is a period of investigation where all sides have the opportunity to discover exactly what happened. During the first phase of discovery, the parties exchange documents, written questions, and depose fact witnesses. Because medical malpractice cases often involve complex areas of science and medicine, expert testimony is also required. During the second phase of discovery, the parties exchange expert witness reports and conduct further depositions. After discovery is closed, the parties have an opportunity to address various legal issues with the judge. This pre-trial phase is designed to streamline the trial and resolve any uncontested issues before trial. During the trial, you will have an opportunity to tell a jury exactly what happened. The medical experts will also testify, and the lawyers for both sides will argue their claims to the jury. The jury will make a decision based on the evidence, and issue a judgment. POST-TRIAL & APPEALS Often, the trial is the final stage in the litigation. Sometimes, however, complicated legal issues or other technicalities may require post-trial proceedings, or in some cases, appeals from the District Court to one of Utah's appellate courts (http://www.utcourts.gov/courts/sup/). ARBITRATION Like mediation, arbitration is a form of alternative dispute resolution. Unlike mediation, however, the results are binding on the parties. Additionally, arbitration forces patients to waive numerous constitutional rights (http://www.citizen.org/congress/civjus/arbitration/articles.cfm?ID=7332), such as the right to a jury, and requires patients--who are often already struggling under the weight of lost income, disability, and unpaid medical bills--to pay extra for a private arbitrator (http://www.citizen.org/congress/civjus/arbitration/articles.cfm?ID=7332) out of their own pockets. Big businesses, including the health care industry, like to tout compulsory arbitration as a remedy to "frivolous" lawsuits and the health care "crisis." The truth, however, is that the health care industry favors arbitration for one simple reason: they have the advantage. Indeed, as Harvard Law Professor Elizabeth Warren (http://www.law.harvard.edu/faculty/directory/facdir.php?id=82) recently noted, " Arbitration may seem like the (http://www.creditslips.org/creditslips/2007/09/deathstar-arbit.html#more) Andy of Mayberry (http://www.creditslips.org/creditslips/2007/09/deathstar-arbit.html#more) form of dispute resolution--folksy, cheap and fair. The data suggest, however, that it is Darth Vader's Death Star--the Empire always wins (http://www.creditslips.org/creditslips/2007/09/deathstar-arbit.html#more)." Health care corporations can easily outspend injured victims in an arbitration setting. Additionally, health care arbitrators know that if they rule against the health care companies, they will be "blacklisted" from ever arbitrating another case. Thus, health care providers take advantage of this method of dispute resolution. Many doctors, acting at the instruction of their insurance carriers and attorneys, now force their patients to sign binding arbitration contracts, even before disputes arise. Patients accept these arbitration agreements because they trust their doctors, and many feel that they will be denied health care if they refuse to sign. In reality, arbitration takes just as long, and is even more expensive than, traditional litigation. The parties still have to go through discovery of fact and expert witnesses, but without the benefit of judicially prescribed procedures designed to level the playing field. Additionally, without access to judges and juries, malpractice victims are often unable to finance the private "pay to play" system of arbitration, and the health care companies win by default. PROTECT YOUR RIGHTS If you or a loved one has been injured by medical malpractice, contact a Utah malpractice lawyer (http://www.ryanspringer.com/about/) today. You should hire an attorney whose practice is focused on representing people injured by medical negligence (http://www.ryanspringer.com/medical-malpractice/), and who has experience with the complicated legal and medical issues involved in a medical malpractice case.

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