Utah Certificate of Merit / Affidavit of Merit — Pre-Litigation Panel (Medical Malpractice)

CERTIFICATE OF MERIT / AFFIDAVIT OF MERIT

(Utah Pre-Litigation Panel Filing — Utah Code §§ 78B-3-416, 78B-3-418, 78B-3-423)

IN THE PRE-LITIGATION DIVISION

UTAH DEPARTMENT OF COMMERCE

DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING (DOPL)

DOPL Pre-Litigation Case No.: [____________________]
Date Notice of Intent Served: [__/__/____]
Date Request for Panel Review Filed: [__/__/____]

CERTIFICATE OF MERIT / AFFIDAVIT OF MERIT

(Submitted in Support of Prelitigation Panel Review)

STATE OF [____________________] )
) ss.
COUNTY OF [____________________] )

I. AFFIANT INFORMATION

I, [EXPERT FULL NAME], M.D. / D.O. / [other licensed designation], being first duly sworn upon oath, depose and state:

1. I am over the age of 18 years, of sound mind, and competent to testify to the matters set forth herein.

2. I have personal knowledge of the matters stated in this Affidavit and could testify competently thereto if called upon to do so.

3. Full Legal Name: [____________________]

4. Professional Licenses Held:

5. Board Certifications: [American Board of __________], [Specialty / Subspecialty], [Year of Initial Certification] / [Last Recertification].

6. Practice Address:
   [____________________]
   [____________________]
   [City, State ZIP]

II. QUALIFICATIONS

7. Education:
   - Medical Degree: [School], [Year]
   - Internship: [Institution], [Year]
   - Residency: [Institution / Specialty], [Years]
   - Fellowship: [Institution / Subspecialty], [Years]

8. Years in active clinical practice: [____] years.

9. Specialty / class of license: I hold a current, unrestricted license to practice [medicine / osteopathic medicine / nursing / __________] and practice in the same specialty or class of license as the Respondent(s) whose conduct is at issue, namely [____________________].

10. Hospital affiliations: [____________________].

11. Academic appointments: [____________________].

12. Publications and peer review: I have authored [____] peer-reviewed publications and serve / have served as a peer reviewer for [____________________].

13. Prior expert testimony: I have testified as an expert in [____] medical malpractice matters in the past [____] years; a list is available on request.

14. A current curriculum vitae is attached as Exhibit 1 and incorporated by reference.

III. MATERIALS REVIEWED

15. In preparing this Affidavit, I have personally reviewed the following materials, which I and other experts in the field of [specialty] reasonably rely upon in forming opinions:

☐ Complete medical records of [PATIENT NAME] from [Facility] for the period [__/__/____] through [__/__/____];
☐ Hospital admission, progress, and discharge records;
☐ Operative reports, anesthesia records, and post-anesthesia recovery records;
☐ Nursing notes, flow sheets, and medication administration records;
☐ Imaging studies (films / DICOM) and radiology reports;
☐ Pathology reports and slide-review summaries (where applicable);
☐ Laboratory results;
☐ Pharmacy records;
☐ Office and clinic records of Respondent(s);
☐ Electronic Health Record (EHR) audit trail and metadata;
☐ Notice of Intent to Commence Action dated [__/__/____];
☐ Request for Prelitigation Panel Review filed [__/__/____];
☐ Relevant published medical literature (listed in Exhibit 2);
☐ Applicable clinical practice guidelines (listed in Exhibit 2);
☐ Other: [____________________].

IV. THE STANDARD OF CARE

16. Based on my training, experience, board certification, and review of the above materials, I am familiar with the applicable Utah standard of care for [specialty / scope of practice] under the same or similar circumstances as those presented by the care of [PATIENT NAME].

17. The applicable standard of care required, among other things, that a reasonably prudent [specialty] under the same or similar circumstances:

a. [____________________] (e.g., perform a thorough differential diagnosis including ___);
b. [____________________] (e.g., order appropriate diagnostic studies including ___);
c. [____________________] (e.g., recognize and respond to ___ within ___ minutes/hours);
d. [____________________] (e.g., obtain documented informed consent including disclosure of ___);
e. [____________________] (e.g., timely consult [specialty]);
f. [____________________] (e.g., communicate [test result] to ___ within ___).

V. OPINION ON BREACH OF THE STANDARD OF CARE

18. Based upon the materials reviewed and my education, training, and experience, it is my opinion, held to a reasonable degree of medical probability, that there are reasonable grounds to believe that one or more Respondents breached the applicable standard of care, in the following respects (without limitation):

As to [Respondent Physician]:

a. [____________________];
b. [____________________];
c. [____________________].

As to [Respondent Hospital / Facility]:

a. [____________________];
b. [____________________].

19. These opinions are based on facts of record in the materials reviewed and on generally accepted medical and surgical principles in [specialty] as of [__/__/____].

VI. OPINION ON CAUSATION

20. It is further my opinion, held to a reasonable degree of medical probability, that the breaches of the standard of care described above were a proximate cause of injury to [PATIENT NAME], including but not limited to:

a. [____________________];
b. [____________________];
c. [____________________];
d. [____________________].

21. More likely than not, the injuries described above would not have occurred had Respondents complied with the applicable standard of care.

VII. STATEMENT OF MERITORIOUSNESS

22. Based on the foregoing, I hereby certify and affirm that there are reasonable grounds to believe that the applicable standard of care was breached by one or more Respondents and that such breach was a proximate cause of the injury claimed, supporting a meritorious cause of action for medical malpractice under the Utah Health Care Malpractice Act, Utah Code § 78B-3-401 et seq.

23. I have been compensated solely for my time at my customary rate of $[______]/hour for record review and $[______]/hour for testimony. My opinions are not contingent on the outcome of this matter.

24. Confidentiality. I acknowledge that proceedings before the DOPL prelitigation panel are confidential, privileged, and immune from civil process under Utah Code § 78B-3-416(5), and I agree to preserve that confidentiality.

ATTORNEY CERTIFICATE OF MERIT

The undersigned, counsel for Claimant, hereby certifies under Utah R. Civ. P. 11 that:

1. I have consulted with the above-identified health care provider, who holds a current unrestricted license in the same specialty or class of license as the Respondent(s) whose conduct is at issue, and who has reviewed the facts of this case.

2. Based on that consultation and review, I have determined that there is a reasonable and meritorious cause for the filing of a medical malpractice action against the Respondent(s).

3. This Certificate is submitted in support of the Prelitigation Panel Review under Utah Code § 78B-3-416 and as evidence of pre-suit investigation under URCP 11. To the extent required following Vega v. Jordan Valley Medical Center, 2019 UT 35, this Certificate also satisfies the spirit and remaining force of Utah Code § 78B-3-423.

DATED this [____] day of [____________________], 20[____].

____________________________________________
[ATTORNEY NAME], Utah Bar No. [__________]
[LAW FIRM NAME]
[FIRM ADDRESS]
[CITY, UT ZIP]
Telephone: [(___) ___-____]
Email: [____________________]
Attorney for Claimant [CLAIMANT NAME]

AFFIANT VERIFICATION AND OATH

I declare under penalty of perjury under the laws of the State of Utah that the foregoing is true and correct to the best of my knowledge, information, and belief.

EXECUTED this [____] day of [____________________], 20[____], at [City, State].

____________________________________________
[EXPERT NAME], M.D. / D.O. / [____________]
Affiant

State of [____________________] )
) ss.
County of [____________________] )

Subscribed and sworn to (or affirmed) before me this [____] day of [____________________], 20[____], by [EXPERT NAME], who is personally known to me or who produced [____________________] as identification.

____________________________________________
NOTARY PUBLIC
My commission expires: [__/__/____]
[Notary Seal]

EXHIBITS

☐ Exhibit 1 — Curriculum Vitae of [Expert Name]
☐ Exhibit 2 — List of medical literature, treatises, and clinical practice guidelines relied upon
☐ Exhibit 3 — List of cases in which Affiant has provided expert testimony in the past four years
☐ Exhibit 4 — Fee schedule and consulting agreement (redacted as appropriate)
☐ Exhibit 5 — Pertinent medical records excerpts (subject to confidentiality protections)

ALTERNATIVE: REQUEST FOR DOPL CERTIFICATE OF COMPLIANCE

TO: Utah Department of Commerce, Division of Occupational and Professional Licensing
Pre-Litigation Section
160 East 300 South, P.O. Box 146741
Salt Lake City, UT 84114-6741
Email: [email protected]

FROM: [ATTORNEY NAME], Counsel for Claimant [CLAIMANT NAME]

RE: Request for Issuance of Certificate of Compliance — DOPL Case No. [____________________]

The undersigned hereby requests, pursuant to Utah Code § 78B-3-418, that the Division issue a Certificate of Compliance to Claimant [CLAIMANT NAME] for each Respondent named in the Notice of Intent and Request for Prelitigation Panel Review filed in the above-captioned matter, on the grounds that:

☐ The panel issued an opinion of merit on [__/__/____];
☐ Claimant has timely filed an Affidavit of Merit (in light of any non-meritorious panel opinion);
☐ The 180-day period under § 78B-3-416(3)(b)(ii) has expired without panel completion;
☐ The parties have submitted a stipulation under § 78B-3-416(3)(c);
☐ Other: [____________________].

____________________________________________
[ATTORNEY NAME], Utah Bar No. [__________]
Date: [__/__/____]

ATTORNEY CHECKLIST — PRELITIGATION PANEL FILING

☐ Notice of Intent served on each Respondent at least 90 days before suit (§ 78B-3-412)
☐ Request for Prelitigation Panel Review filed with DOPL within 60 days of Notice of Intent (§ 78B-3-416)
☐ Filing fee paid (verify current DOPL fee)
☐ Certificate / Affidavit of Merit prepared with qualified expert
☐ Expert holds current unrestricted license in same specialty/class
☐ Expert CV attached as Exhibit 1
☐ Materials reviewed list complete
☐ Standard-of-care opinion expressed to reasonable medical probability
☐ Causation opinion expressed to reasonable medical probability
☐ Affidavit notarized
☐ Confidentiality preserved (§ 78B-3-416(5))
☐ Panel hearing date calendared (180-day deadline)
☐ Tolling diary maintained under § 78B-3-416(2)
☐ Post-panel: Certificate of Compliance requested (§ 78B-3-418)
☐ Vega impact considered: do NOT treat affidavit of merit as a strict jurisdictional gate
☐ Same affidavit retained for use as URCP 11 pre-suit investigation evidence

SOURCES AND REFERENCES

• Utah Code § 78B-3-416 — Prelitigation Panel Review: https://le.utah.gov/xcode/Title78B/Chapter3/78B-3-S416.html
• Utah Code § 78B-3-418 — Decision and Recommendations of Panel
• Utah Code § 78B-3-423 — Affidavit of Merit (struck by Vega)
• Utah Code § 78B-3-412 — Notice of Intent
• Utah Code § 78B-3-403 — Definitions
• Utah Admin. Code R156-78B — DOPL Rules: https://rules.utah.gov/
• Vega v. Jordan Valley Medical Center, 2019 UT 35: https://www.courtlistener.com/opinion/4641494/vega-v-jordan-valley-medical/
• Smith v. United States, 2015 UT 68 — Wrongful death cap unconstitutional
• Utah DOPL Prelitigation Forms: https://dopl.utah.gov/prelitigation/forms/
• Utah DOPL Prelitigation Overview: https://dopl.utah.gov/prelitigation/overview/

IMPORTANT POST-VEGA NOTE

Following Vega v. Jordan Valley Medical Center, 2019 UT 35, the Utah Supreme Court invalidated the affidavit-of-merit / DOPL certificate-of-compliance gatekeeping function of § 78B-3-423 and related provisions as a violation of separation of powers. You may file a malpractice action in Utah district court without obtaining a DOPL Certificate of Compliance. However:

1. The prelitigation panel process under § 78B-3-416 itself remains operative.
2. The Notice of Intent under § 78B-3-412 remains a statutory condition.
3. Submitting an expert affidavit substantially in the form above continues to be best practice both in panel proceedings and as URCP 11 pre-suit investigation evidence.
4. Where DOPL does issue a panel opinion or certificate, counsel should attach it to any subsequent complaint as Exhibit A.

This template is a procedural framework. Counsel must adapt the affidavit content to the specific facts and engage qualified experts. Confirm current statutes, rules, and case law before filing.