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Affidavit of Merit Requirement Ruled Unconstitutional

Posted on May 4, 2020 Leave your thoughts

On July 19, 2019, G. Eric Nielson & Associates celebrated a substantial victory for victims of medical malpractice in the State of Utah. In the landmark case of Vega v. Jordan Valley Medical Center, et al., our firm, on behalf of all our present and future clients, persuaded the Utah Supreme Court to declare that the Utah Healthcare Malpractice Act’s Affidavit of Merit Requirement is unconstitutional.

In 2010, the Utah legislature, in a bid to make it even more difficult for victims of malpractice to obtain justice against negligent medical care providers, added an onerous affidavit of merit requirement to the already onerous prelitigation process that medical malpractice victims in Utah must submit to.

Essentially, the affidavit of merit requirement required victims of malpractice who could not convince a biased panel of doctors that their claim had merit to obtain an affidavit from a medical provider with the same class of license as the negligent medical care provider stating that the care at issue was negligent and caused the patient harm. If the patient could not obtain this affidavit, then they were barred from ever filing the case.

While having an expert witness is always eventually required in medical cases, it is often very difficult to get an expert to review the records in time to file. Some doctors won’t sign an affidavit without reading a transcript of the defendant physician explaining his side of the story. Sometimes the medical records are so vague, or incorrect, that you can’t convince a doctor that your story is true.

The affidavit of merit requirement was a difficult hurdle for many patients to overcome, and insulated culpable doctors from ever having to defend their care. Hiring a doctor to review the records is expensive. If the first expert didn’t like your case, then it was economically impractical to file and you would never recover.

Now, since the Vega decision, victims of malpractice can have a fair chance to prove their case. While they are still required to have an expert testify in their behalf at trial. Patients have the time necessary to investigate the case, depose the defendant physician, and discover important information that they may not have had reasonable access to before. It is much easier to convince a doctor to support your case when you have all of the important information.

We are proud to have been the law firm that convinced the Utah Supreme Court to reverse the Utah legislature’s onerous special interest law. We will continue to pursue justice for all of our clients. If you would like us to review your case, please call us at (801) 424-9088 for a free consultation.

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