Almost hidden among the many new bills passed by the 2011 Utah Legislature is a one-sentence bill that has significant ramifications for medical malpractice cases. S.B. 150 reads, in its entirety, as follows:

Be it enacted by the Legislature of the state of Utah:

Section 1. Section 78B-3-425 is enacted to read:

78B-3-425. Prohibition on cause of action for negligent credentialing.

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.

What Is Negligent Credentialing?

Robert A. Clifford, at Clifford Law Offices, describes Negligent Credentialing this way:

Negligent credentialing is a count filed against a hospital based on corporate negligence principles. A corporate negligence claim against a hospital differs from a respondeat superior claim in that it imposes on the hospital a non-delegable duty owed directly to the patient that is independent of the doctor-hospital relationship.

Therefore, a hospital or other health-care provider may be held liable for corporate negligence for failing to exercise reasonable care in hiring an employee or in extending staff privileges to a doctor.

In short, a negligent credentialing claim is an addition to a regular medical malpractice claim. Negligent credentialing holds the hospital accountable to the patient for granting hospital privileges to incompetent, reckless, and negligent health care providers.

Archuleta v. St. Mark’s Hospital

In 2010, the Utah Supreme Court handed down its ruling in the case of Archuleta v. St. Mark’s Hospital, 2009 UT 36. In Archuleta, the plaintiff made a claim that the hospital was negligent in credentialing the doctor who committed medical malpractice. The district court dismissed the claim, stating that Utah statute did not recognize a claim for negligent credentialing.

The Supreme Court, in a 3-2 decision, reversed the district court decision. After reviewing the relevant statutes and rulings from other states, the Court stated that it formally recognized negligent credentialing as a valid common-law cause of action in Utah.

S.B. 150

The Archuleta decision apparently rankled the hospital industry enough to spur it to action. The result was the introduction of S.B. 150 in the 2011 session. According to the Utah Association for Justice, one of the misconceptions presented by the bill’s sponsors was that negligent credentialing was not a common-law cause of action; rather, it was created by an “activist” Utah Supreme Court in Archuleta. UAJ members tried to point out, with limited success, that negligent credentialing cases existed prior to Archuleta, but since most of these types of cases settle well before trial, they are not referenced in the caselaw.

Neophyte Lawyer’s Thoughts

As near as I can tell, negligent credentialing cases are rare. At a meeting of UAJ members in April, only a handful had ever tried a negligent credentialing case, and none of those had tried more than one. This begs the question: what evil was the Legislature addressing in S.B. 150?

My sister, who is also my supervising attorney, put it this way. These cases don’t come up very often, but when they do come up, it is a big deal. Based on this, I think it is only a matter of time until someone challenges the constitutionality of S.B. 150. Since these cases are rare, that challenge might not come for some time.

Of greater concern to me is the political maneuvering behind the bill. I have no problem with the Legislature creating or abolishing causes of action. And, at this stage of my career, I’m not necessarily convinced that this bill is the end of the world as we know it. There will still be medical malpractice cases. There will still be negligence cases. Plaintiffs’ attorneys will not hurt for work.

But why the subterfuge? Why blame this on “activist” courts? What does that even mean, besides “handing down rulings I don’t like?” In Archuleta, the Utah Supreme Court specifically analyzed this as a “common-law” cause of action. That means that it has been around for a while. If the Legislature wants to get rid of this common-law cause of action, that’s fine. It is, after all, the Legislature’s job. Just be up front about it. Apparently, however, it is better P.R. to use code words like “judicial activism” to get the public all stirred up.


About W. Lewis Black

W. Lewis Black is an associate attorney at Dunn & Dunn, P.C., located in Salt Lake City, Utah. His practice focuses on personal injury, employment law, workers compensation, and Social Security Disability claims. He is a past member of the Ensemble at Pinnacle Acting Company in Midvale, Utah. He can be contacted at wlblack@dunndunn.com.
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  1. Tom Maggio says:

    Not an Esquire, but some of my best friends are….


    The “activist supreme court” canard fits in nicely with the “tort reform” and “frivolous lawsuits” meme. In general, specific examples notwithstanding, most lay folk don’t fully appreciate the legal profession until they are in need of someone representing their interests.

    I read with amusement the pronouncements made about the education establishment about what should and should not be taught in school by those outside the profession. If I may be so bold, I would like to add to that list of “required for graduation” classes: A course in understanding “self-interest” from a legal perspective. I came to realize rather late in life that my “interests” do not necessarily coincide with my employer, my neighbors and others. For that reason, I may need someone professionally trained to act in my interests.

    Great Blog!

    • W. Lewis Black says:

      Thanks for the comments, Tom. I agree with you about “tort reform” and “frivolous lawsuits.” I’m working on a post about that, but I haven’t figured out all of my arguments just yet. I’ll let you know when it all comes together.

      Hope you keep visiting!

  2. Kathy Matzka says:

    I listened to the debate on this bill. In the discussions, they made a point that hospitals can still be held liable for credentialing decisions under Respondeat superior. As long as there is a cause of action, what difference if you call it “negligent credentialing” or something else?

    • W. Lewis Black says:

      Good question. As I understand it, the difference is that a negligent credientialing claims is a separate cause of action against the hospital only, while a respondeat superior claim is tied to the medical malpractice claim against the individual health care provider (the provider being the agent of the hospital).

      That’s my initial reaction. Let me do a bit more research, and I’ll see if I can find out a little more.

  3. Pingback: Utah Legislature Watch: tortious Act Arbitration (S.B. 52) | Black's Blawg

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