by Shaun Mathur
The Utah Supreme Court recently held that a state statute prohibiting suits for negligent credentialing against health care providers does not apply retroactively.[1] The effect of the holding is negligent credentialing claims that arose prior to the statute’s enactment may proceed.[2]
The issue came to the court’s attention after an Intermountain Health Care (“IHC”) physician performed several gynecological procedures on Plaintiff Melissa Waddoups (“Waddoups”) on May 24, 2010.[3] Waddoups claimed that she suffered harm because the physician negligently performed the procedures.[4] Waddoups also brought a claim of negligent credentialing against IHC, claiming IHC failed to exercise reasonable care when it granted privileges to and credentialed the performing physician.[5]
The suit began in the United States District Court for the District of Utah, but the federal court certified a question to the Utah Supreme Court.[6] The question presented asked, “[d]oes section 78B-3-425 of the Utah Code clarify existing law and therefore retroactively apply to bar negligent credentialing claims that arose prior to its enactment?”[7] Section 78B-3-425 states: “It is the policy of this state that the question of negligent credentialing, as applied to health care providers in malpractice suits, is not recognized as a cause of action.”[8]
The Utah Legislature enacted the statute in response to the Utah Supreme Court’s decision in Archuleta v. St. Mark’s Hospital,[9] where the court held negligent credentialing is a valid common-law cause of action in Utah.[10] The court reasoned that negligent credentialing is “simply the application of broad common law principles of negligence,” and is a “natural extension of torts such as negligent hiring.”[11] The court also articulated “strong policy reasons for recognizing the cause of action,” such as the foreseeable harm that a hospital’s failure to properly investigate a physician’s qualifications causes to patients.[12] But the Utah Legislature disagreed with the court’s rationale and enacted the statute on May 10, 2011, to prohibit claims for negligent credentialing.[13]
In holding the statute did not apply retroactively, the Waddoups court applied a two-step analysis to determine whether the legislature expressly declared the statute had retroactive application.[14] First, the court examined the statute’s text because “the best evidence of legislative intent is the plain language of the statute itself.”[15] The court concluded the statute was not ambiguous and its use of the phrases “is” and “is not recognized” evinced an intent that the statute apply to the present and moving forward, opposed to retroactively.[16]
Second, the court held the statute was substantive in nature opposed to procedural.[17] This distinction was significant because a substantive statute applies retroactively only if the legislature intends it to, whereas a procedural statute may apply retroactively without legislative intent.[18] The court also rejected IHC’s claim that section 78B-3-425 was a clarifying amendment and therefore applied retroactively.[19] Justice Nehring, writing for the court, reiterated the rule that the “amendments clarifying statutes” exception to the retroactivity prohibition applies only to procedural statutes.[20] Because the court already determined the statute at issue was substantive in nature, the court concluded the statute did not apply retroactively.[21] Therefore, a negligent credentialing claim may proceed if it arose, i.e., the facts giving rise to the claim occurred, prior to the statute’s enactment on May 10, 2011.
Shaun Mathur is currently a 2L at the College of Law where he is a member of the Utah Law Review and a Center for Law and Biomedical Sciences Fellow. Shaun graduated with a B.S. in Chemistry from Stony Brook University and is interested in pursuing a career in intellectual property law. Prior to law school, Shaun was an avid ice hockey player.
[1] Waddoups v. Noorda, No. 20120310, 2013 WL 5864481, at *1 (Utah Nov. 1, 2013).
[2] Id. at *3.
[3] Id. at *1.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Utah Code Ann. § 78B-3-425 (West 2011).
[9] 238 P.3d 1044 (Utah 2010), superseded by statute, Utah Code Ann. § 78B-3-425, as recognized in Waddoups, 2013 WL 5864481, at * 1.
[10] Archuleta, 238 P.3d at 1049.
[11] Id.
[12] Id.
[13] Waddoups, 2013 WL 5864481, at *1.
[14] Id. at *2.
[15] Id.
[16] Id. at *2.
[17] Id.
[18] Id.
[19] Id. at *3.
[20] Id. (citing Gressman v. State, No. 20110965, 2013 WL 5674557, at *4 (Utah Oct. 18, 2013)).
[21] Id.