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Utah's high court tosses hurdle to suing for malpractice

By Annie Knox, KSL | Posted - Jul 23rd, 2019 @ 7:38am


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SALT LAKE CITY — If her father were still alive, Jessie Schipper knows exactly how he would spend his time.

At every opportunity, Gustavo Vega would cheer on the grandsons he did not get to meet: Ammon, age 2, who has undergone open heart surgery for a birth defect, and Noah, who shares Vega's love of food at just 1 year old. He would cook carne asada or seafood soup for Sunday dinner and spend most days at his West Valley City autoshop.

Four years ago, however, Vega was rushed to Jordan Valley Medical Center, where Schipper had just begun orientation as a nurse's aide. She arrived in the emergency room to find her father doubled over in stomach pain.

Vega emerged in a coma after a surgery to remove his gall bladder and later died, yet medical records do not indicate exactly what went wrong. As a result, Utah's public licensing agency rejected his family's effort to sue until last week, when the Utah Supreme Court ruled in their favor and directed a lower court to revisit the case.

The justices determined the Division of Occupational and Professional Licensing cannot make the final call on whether someone's malpractice claim goes to court.

"The problem here is that they did the job of the judiciary," said Troy Booher, an appellate lawyer who successfully argued the case.

"We're extremely excited for this to go forward," Schipper said. "It's hard to not have something you expected to happen your whole life, to have your parents as grandparents and watch as that relationship flourishes. You can only imagine how your life would have been."

Gustavo Vega, right, poses with family members for a portrait. (Photo: Family photo)

The court threw out portions of Utah law that allow the state's public licensing agency to block a person's malpractice claim from reaching a courtroom. Under 2010 changes to the law designed to combat soaring medical costs, the agency could make a final decision with no opportunity for appeal, the opinion states.

"The Supreme Court said, 'Wait a minute. It isn't your job to adjudicate civil lawsuits. That's our job,'" said Eric Nielson, an attorney for Yolanda Vega, Gustavo Vega's widow. "This got rid of one particularly egregious, offensive hurdle."

When there's no potential for review by a judge, "then the ruling of the panel is not a recommendation or an opinion — it is an authoritative and final ruling on whether a claim has merit," the court's opinion says. "It is a total disposition of a case, outside of the courts, without any standard judicial process or the consent of the parties."

The Legislature has power to try to limit frivolous lawsuits if it finds they drive up costs of care, but Utah's constitution grants judicial power only to the courts, the opinion says. Justice Deno Himonas authored the decision. Four of his colleagues concurred.

Under the 2010 law, a person planning to sue for medical malpractice first needed approval from a DOPL panel of three — a doctor, a lawyer and an everyday person. Or, if the panel sides against them, they can obtain a signed document from a health care provider explaining why they have a case.

After the panel denied her claim, Yolanda Vega sought the letter from a doctor who believed she had grounds to sue but found the records lacked the details to determine who at the hospital caused Gustavo Vega's death. DOPL deemed the doctor's letter unsatisfactory and asked Yolanda Vega to file a new affidavit.

Instead, she sued in 3rd District Court, where her attorneys argued the law violates the separation of powers and due process, among other constitutional safeguards. The judge determined it was "impossible" for her to comply with the agency's requests in order to obtain its permission to sue, and dismissed the case. Vega appealed to the Utah Supreme Court.

State Senate President Stuart Adams, who sponsored the 2010 changes to the law, said he believed the state agency was "well meaning in trying to perform their duties." Gustavo Vega's family, he continued, "checked the boxes and probably should have been allowed to go ahead."

A spokeswoman for the Utah Department of Commerce, which oversees the state's licensing arm, said it is in the process of complying with the ruling but did not elaborate. Adams said he expects new proposals at the 2020 Legislature will aim to bring the law in line with the Supreme Court's opinion.

A spokesman for Jordan Valley Medical Center declined comment.

Schipper said she hopes the change will ultimately force more accountability on hospitals and those who work there.

She noted her father didn't care for conflict or hard feelings. When his kids were fighting, he would pull his children into a room until they could work out their differences.

"He was a peacemaker," she said. "He always wanted everyone to get along."

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Annie Knox

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