Utah Medical Malpractice Affidavit of Merit and Expert Opinions: When and How They're Used
General information, not legal advice. Read the full disclaimer.
Short answer: In a Utah malpractice case, an affidavit of merit is a sworn statement, supported by a qualified health care provider's signed opinion, that there are reasonable grounds to believe the standard of care was breached and that the breach was a proximate cause of the injury. Under Utah Code § 78B-3-423 a claimant who elects to file one generally does so within 60 days after the prelitigation panel's opinion if the panel found the claim non-meritorious (as to breach or causation). The statute also says you may proceed to litigate regardless of whether you filed an affidavit of merit, whether the panel found merit, or whether you participated in the panel.
Who this guide is for
Patients and families who've gone through (or are about to go through) Utah's malpractice pre-suit process and want to understand what an affidavit of merit is and whether they need one.
The panel review comes first
Utah's pre-suit process includes a notice of intent and a prelitigation panel review, after which the panel issues a written opinion within 30 days after the review concludes, deciding whether each claim against each provider has merit or no merit, and, if meritorious, whether the conduct resulted in harm. There is no judicial review or appeal of that opinion, and the Division issues a certificate of compliance showing you've met the pre-suit conditions. See Utah Medical Malpractice Notice of Intent and Prelitigation Panel.
What the affidavit of merit is
If you choose to file one, it must:
- Be executed by the claimant's attorney (or by the claimant, if self-represented), stating that the affiant consulted with and reviewed the facts with a health care provider who determined, after reviewing the medical record and other relevant material, that there is a reasonable and meritorious cause for a medical liability action; and
- Include an affidavit signed by a health care provider stating that, in the provider's opinion, there are reasonable grounds to believe the applicable standard of care was breached, that the breach was a proximate cause of the injury claimed in the notice of intent, and the reasons for the opinion.
The statement about breach is waived if the claimant received a panel opinion that the standard of care was breached.
When it's filed
- Within 60 days after the panel issues an opinion, if the panel found non-meritorious either the breach-of-standard-of-care claim or the claim that the breach proximately caused injury.
- Within 60 days after the time limit for the panel review expires, if the hearing wasn't held in time.
- Within 30 days after a Division determination in certain cases where the review didn't occur.
File the affidavit with the Division and serve each defendant in the manner the notice-of-intent statute requires.
Who can sign the provider's affidavit
The provider must hold a current, unrestricted license — in Utah or another state — that matches the defendants:
- if no defendant is a physician or osteopathic physician, a provider licensed in the same specialty or class of license as the defendants; or
- if at least one defendant is a physician or osteopathic physician, a provider licensed to practice medicine in all its branches.
You can still sue without it
The statute says a claimant "may proceed to litigate and pursue a judicial remedy regardless of" whether the claimant filed an affidavit of merit, whether the panel found the claim meritorious, or whether the claimant participated in the panel. In practice, the affidavit is a tool: it can support a claim after an unfavorable panel opinion. Because Utah malpractice cases generally require expert testimony at trial, a qualified expert review is almost always part of evaluating a claim.
Why expert review matters
- Standard of care. What a reasonably prudent provider in the same field would have done is usually proven through an expert.
- Causation. Experts connect the breach to the injury, separating it from the underlying condition.
- Damages. Life-care planners and economists may be needed for catastrophic injuries.
Frequently asked questions
Do I have to file an affidavit of merit in Utah?
No. It's elective. You can litigate regardless of whether you filed one.
What if the panel finds my claim has no merit?
The opinion isn't reviewable and isn't binding; you may file an affidavit of merit within 60 days and still proceed to litigation.
Who can sign the supporting provider affidavit?
A provider with a current, unrestricted license in the same specialty or class as the defendants (or licensed to practice medicine in all its branches if a physician is a defendant).
Who files it?
You file it with the Division and serve each defendant.