House approves emergency-room tort reform, raising evidence standard to 'clear and convincing'

The Utah House on Feb. 20 approved House Bill 338, a measure that raises the burden of proof for malpractice claims arising from emergency-room care so that a health-care provider “may be liable for civil damages only if … fault is established by clear and convincing evidence,” sponsor Rep. Brad Last said on the floor.

Supporters framed the change as narrowly tailored to the emergency department, which — under federal law (EMTALA) — must provide stabilizing care to anyone who arrives. Rep. Last told colleagues the unique, federally mandated role of ER providers and staffing shortages justify a higher evidentiary standard to encourage more specialists to take emergency-room call.

“Because of this unique situation … we are changing the standard for evidence if someone wants to file a lawsuit in these cases,” Last said, reading the bill’s language on the House floor. He cited Arizona’s prior experience with a higher standard for certain specialties and said the Utah Medical Association supports the policy as a tool to help recruit and retain physicians in emergency settings.

Opponents urged caution and changes. Rep. Elk and others pushed for time-limited provisions and narrower scope, arguing there is insufficient objective data that the measure would increase physician responsiveness. Representative McKibb cited available financial data from insurers and questioned the characterization of a statewide malpractice “crisis,” calling for better baseline information before tipping the burden of proof further against injured parties. “The last hard data … collected in premiums $40,000,885 … and paid out in claims, $13,385,000,” he said as part of his floor remarks.

Lawmakers debated substitute and sunset amendments. A substitute amendment offering a time-limited review (a sunset) won support as a compromise to allow the law to be evaluated for effect if enacted. Supporters said the sunset would allow policymakers to review whether the change improved ER staffing without permanently altering malpractice standards.

After extended debate and amendment votes, the House passed HB338 as amended by a roll-call tally of 47 yes votes and 27 no votes. The bill will be transmitted to the Senate for further consideration.

Next steps: HB338, as passed by the House, will go to the Senate where sponsors expect additional review and potential floor amendments. The substitute/sunset language attached in the House will be part of the version transmitted to the upper chamber.