Utah Medical Malpractice Damages Cap, Collateral Source Offsets, and the 33⅓% Fee Limit
General information, not legal advice. Read the full disclaimer.
Short answer: Utah's Health Care Malpractice Act changes the money rules in malpractice cases compared with ordinary injury cases. For a cause of action arising on or after May 15, 2010, noneconomic damages (pain, suffering, and inconvenience) are capped at $450,000 (Utah Code § 78B-3-410). The court must reduce the award by collateral-source payments available to the plaintiff (§ 78B-3-405). And an attorney may not collect a contingent fee exceeding 33⅓% of the amount recovered (§ 78B-3-411). The cap doesn't apply to punitive damages.
Who this guide is for
Patients and families evaluating a malpractice claim who want to understand how much they can realistically recover and what fees look like.
The noneconomic damages cap
In a malpractice action against a health care provider, an injured plaintiff may recover noneconomic losses only to compensate for pain, suffering, and inconvenience, and the amount is limited by when the cause of action arose:
| Cause of action arose | Cap on noneconomic damages |
|---|---|
| Before July 1, 2001 | $250,000 |
| July 1, 2001 – June 30, 2002 | $400,000 (inflation-adjusted) |
| July 1, 2002 – May 14, 2010 | $400,000 base, adjusted annually for inflation through 2009 |
| On or after May 15, 2010 | $450,000 |
The cap limits noneconomic damages only. The statute doesn't cap economic damages such as medical expenses, lost earnings, and the cost of future care, and the limit doesn't apply to awards of punitive damages.
This differs from ordinary Utah negligence cases, where general negligence claims don't have a general statutory cap on noneconomic damages. See Utah Personal Injury Damages: What You Can Recover.
Collateral-source offset
In malpractice actions, after a finding of liability and an award of damages, the court reduces the award by the total of all amounts paid to the plaintiff from collateral sources available to the plaintiff (§ 78B-3-405). "Collateral sources" include:
- medical and disability payments under Social Security and other public programs (except federal programs required by law to seek subrogation);
- health, sickness, or income-replacement insurance and auto insurance that provides health or income benefits (but not life insurance);
- contractual arrangements to provide or reimburse health care costs; and
- employer wage-continuation plans.
Important limits: No reduction is made for collateral sources that have a subrogation right under the statute. To preserve subrogation rights for amounts paid before settlement or judgment, the provider of the collateral source must serve written notice on each health care provider against whom the action was filed at least 30 days before settlement or trial. Also, the court considers amounts you or your family paid to secure the benefit (such as premiums) and offsets the reduction by those amounts. Evidence of government programs available in the future can be admitted when determining future damages.
Utah's collateral-source rule for general negligence cases is different from this malpractice-specific statute, so don't assume the same offset applies to other injury claims.
The 33⅓% contingency-fee limit
In a malpractice action against a health care provider, an attorney may not collect a contingent fee exceeding 33⅓% of the amount recovered for personal injury or wrongful death caused by another's negligence, whether the recovery comes from settlement, arbitration, or judgment, and whether or not an appeal is involved (§ 78B-3-411). This is lower than the 33–40% range commonly advertised for other injury cases. The limit applies to the fee percentage; costs (expert fees, records, filing fees) are separate and should be spelled out in the written fee agreement. See Utah Personal Injury Lawyer Fees and Contingency Agreements.
Wrongful death in malpractice cases
Wrongful death claims arising from malpractice are subject to the same Act. See Utah Wrongful Death Claims.
Why malpractice cases cost more to bring
Utah malpractice claims require pre-suit notice, a panel review, and expert testimony, which are expensive and time-consuming. Combined with the cap and the offset, the value of a smaller case can be absorbed by costs; attorneys evaluate whether the economics work before accepting a case.
Frequently asked questions
What is the cap on pain and suffering in a Utah malpractice case?
$450,000 for causes of action arising on or after May 15, 2010.
Is there a cap on medical expenses or lost wages?
The statute limits noneconomic damages; it doesn't cap economic damages.
Can I get punitive damages?
The cap doesn't apply to punitive damages, which have their own proof requirements. See Utah Punitive Damages in Injury Claims.
How much can a malpractice lawyer charge on contingency?
No more than 33⅓% of the amount recovered.
Does my health insurance payment reduce my award?
The court reduces the award by collateral-source payments, unless a subrogation right exists and was preserved under the statute.