A Salt Lake attorney and her client have filed suit against the state, challenging the constitutionality of a Utah law pertaining to medical malpractice suits.
Becky Mohler and her attorney, Mary C. Corporon, acting as a plaintiff, have named as defendants the state of Utah, Attorney General David L. Wilkinson and Gov. Norm Bangerter.Assistant Attorney General Stephen Sorenson had no comment Wednesday on the case, because he hadn't seen it yet.
The plaintiffs said state law violates their constitutional right to equal protection by protecting doctors more than any other professionals from malpractice suits.
The law requires anyone filing a medical malpractice case to give the defendant 90 days advance notice of intent to sue and then to submit to a pre-litigation review by the state Department of Business Regulations to determine whether the case has merit.
But even if the Business Regulation panel rules against the case, the ruling is non-binding and plaintiffs are free to go to court, said Corporon.
"It serves no purpose. It's just another 90-day or six-month delay period," she said.
The plaintiffs also are challenging the law's limitation of plaintiff attorney fees to one-third of any settlement. No other kind of malpractice suit has that limitation, and even in medical malpractice the law limits only the plaintiff's attorney fees - defense counsel can charge any amount, Corporon said.
Not only do these limitations deny equal protection, the plaintiffs contend, but they also violate the right to due process by restricting a plaintiff's right to retain counsel and to bargain for attorney representation.
Also challenged by the lawsuit is the law's limitation of non-economic damages to $250,000. That limit does not apply to malpractice by architects, lawyers or other professionals or to individuals involved in other negligence cases, such as auto accidents, Corporon said.