Utah Code Section 78B-3-412 requires that before filing a medical malpractice lawsuit in Utah, the plaintiff must serve the health care provider with at least 90 days’ written notice of intent to commence an action and, except for claims against dentists, obtain a certificate of compliance from the Division of Professional Licensing, serving as a pre-litigation screening mechanism designed to encourage early evaluation and settlement of claims.
Last updated: July 2026
Key Takeaways
- A 90-day pre-litigation notice of intent is required under Utah Code Section 78B-3-412 before filing a medical malpractice lawsuit.
- Except for dental claims, a certificate of compliance from the Division of Professional Licensing is also required.
- The notice must include specific details about the claim including the nature of the allegations, persons involved, and injuries sustained.
- If the notice is served less than 90 days before the statute of limitations expires, the filing deadline is extended to 120 days from service.
- Failure to comply with the pre-litigation requirements can result in dismissal of the malpractice action.
What is the pre-litigation notice requirement for medical malpractice in Utah?
Utah Code Section 78B-3-412(1)(a) provides that a malpractice action against a health care provider may not be initiated unless and until the plaintiff gives the prospective defendant at least 90 days’ prior notice of intent to commence an action. This 90-day waiting period is mandatory and cannot be waived by the court. The purpose of the requirement is to give health care providers an opportunity to investigate the claim, evaluate potential liability, and engage in settlement discussions before litigation begins.
The notice must be in writing and may take the form of a letter or affidavit executed by the plaintiff or their attorney. It must include a general statement of the nature of the claim, the persons involved, the date, time, and place of the occurrence, the circumstances surrounding the claim, specific allegations of misconduct on the part of the prospective defendant, and the nature of the alleged injuries and other damages sustained. The level of detail required is sufficient to allow the health care provider to understand the basis of the claim and conduct a meaningful investigation.
The notice is served either by personal service in the manner prescribed by the Utah Rules of Civil Procedure or by certified mail with return receipt requested. When served by certified mail, the notice is considered served on the date of mailing. Proper service is essential because the statute of limitations consequences described below depend on when the notice is actually served.
What is the certificate of compliance requirement?
In addition to the 90-day notice requirement, Utah Code Section 78B-3-412(1)(b) requires the plaintiff to receive a certificate of compliance from the Division of Professional Licensing before initiating a malpractice action, except for actions against dentists or dental care providers. The certificate of compliance is obtained through a pre-litigation review process conducted by the Division, which evaluates whether the claim has sufficient merit to proceed.
The Division’s pre-litigation review process involves submission of relevant medical records and a statement of the claim. A panel of health care professionals reviews the materials and determines whether there is a reasonable basis for the claim. If the panel finds no reasonable basis, the Division may still issue a certificate of compliance if the plaintiff provides additional evidence, but the process creates a screening mechanism that can identify meritless claims before they reach the court system.
It is important to note that the certificate of compliance is not a determination of the merits of the case. It is simply a procedural prerequisite to filing a lawsuit. Even if the Division’s panel finds no reasonable basis for the claim, the plaintiff may still be able to obtain a certificate and proceed with litigation. The certificate of compliance requirement does not replace or substitute for the substantive elements of proof required at trial.
How does the pre-litigation requirement interact with the statute of limitations?
The 90-day notice requirement creates a critical interaction with the statute of limitations under Utah Code Section 78B-3-404. If a plaintiff serves the notice of intent less than 90 days before the statute of limitations expires, Utah Code Section 78B-3-412(4) provides that the time for commencing the malpractice action is extended to 120 days from the date of service of the notice. This extension prevents the notice requirement from effectively shortening the statute of limitations.
However, this 120-day extension applies only to the two-year discovery-based limitations period, not to the four-year statute of repose. The statute of repose continues to run regardless of the notice requirements, and if the repose period expires during the 90-day waiting period, the claim may be barred. This creates a situation where a plaintiff who discovers their injury late in the repose period must act quickly to serve notice while still having enough time left to file within the repose window.
Strategic timing of the notice is therefore essential. Serving notice too early may start the 90-day period before all necessary investigation is complete, while serving notice too late may leave insufficient time to file before the repose period expires. An experienced medical malpractice attorney can navigate these timing issues to ensure that all procedural requirements are met without sacrificing the client’s substantive rights.
What happens if the pre-litigation requirements are not followed?
Failure to comply with the pre-litigation notice or certificate of compliance requirements under Utah Code Section 78B-3-412 can have serious consequences. If a plaintiff files a malpractice action without first serving the 90-day notice, the defendant health care provider may move to dismiss the action as premature. The court may dismiss the case without prejudice, allowing the plaintiff to refile after serving the proper notice, but this can result in additional delay and expense.
More critically, if the statute of limitations expires while the case is dismissed for lack of proper notice, the plaintiff may lose the ability to refile the claim entirely. This risk is particularly acute when the case is filed close to the expiration of the limitations period. The plaintiff may not have enough time remaining after dismissal to serve proper notice and refile before the deadline passes.
Failure to obtain a certificate of compliance from the Division of Professional Licensing can also result in dismissal. The requirement is mandatory, and Utah courts have enforced it strictly. Plaintiffs and their attorneys should ensure that the certificate is obtained before filing the complaint, not after. Unlike the notice requirement, there is no mechanism to cure a missing certificate after the case has been filed.
What information must be included in the notice of intent?
Utah Code Section 78B-3-412(2) specifies six categories of information that must be included in the notice of intent. First, the notice must contain a general statement of the nature of the claim, describing in broad terms the legal basis for the malpractice action. Second, it must identify the persons involved, including both the plaintiff and the prospective defendant health care provider or providers.
Third, the notice must state the date, time, and place of the occurrence giving rise to the claim. Fourth, it must describe the circumstances surrounding the claim, providing enough factual detail for the health care provider to understand what allegedly happened. Fifth, the notice must include specific allegations of misconduct on the part of the prospective defendant. Sixth, it must describe the nature of the alleged injuries and other damages sustained.
The level of specificity required is sufficient to put the health care provider on notice of the claim and enable a meaningful investigation. The notice does not need to include all of the evidence that will be presented at trial, but it must be detailed enough that the provider can identify the relevant incident, personnel, and medical records. A vague or conclusory notice that fails to provide this information may not satisfy the statutory requirement and could result in dismissal.
Does the pre-litigation requirement apply to all types of health care providers?
The pre-litigation requirements under Utah Code Section 78B-3-412 apply broadly to all health care providers as defined by Utah Code Section 78B-3-403(13). This includes physicians, physician assistants, registered nurses, licensed practical nurses, hospitals, health care facilities, and other licensed professionals. However, Utah Code Section 78B-3-412(1)(b) specifically exempts actions against dentists or dental care providers from the certificate of compliance requirement.
This exemption means that dental malpractice claims still require the 90-day notice of intent, but the plaintiff does not need to obtain a certificate of compliance from the Division of Professional Licensing before filing. The rationale for this exemption is related to the separate regulatory structure governing dental care providers under Utah law. However, the 90-day notice requirement still applies fully to dental malpractice cases.
The pre-litigation requirements also apply to claims against health care facilities such as hospitals, nursing homes, ambulatory surgical centers, and other institutions that provide health care services. Claims against individual practitioners and institutional providers alike must comply with the notice requirement. Third-party actions, counterclaims, and crossclaims against health care providers are specifically exempted from the notice requirement under Utah Code Section 78B-3-412(5).
Frequently Asked Questions
Is the 90-day notice requirement in Utah medical malpractice cases mandatory?
Yes. Utah Code Section 78B-3-412 states that a malpractice action “may not be initiated unless and until” the notice is given. Courts have enforced this requirement strictly.
Can the 90-day waiting period be shortened by the court?
No. The statute does not provide for judicial waiver or shortening of the 90-day period. The plaintiff must wait the full 90 days or, if notice is served late, the extended 120-day filing period applies.
What happens if the health care provider responds to the notice within 90 days?
The plaintiff may still not file until the 90-day period has expired, unless the parties agree to an earlier filing. The waiting period is designed to allow time for pre-litigation discussions.
Does the pre-litigation notice apply to claims against University of Utah Health?
Yes, but claims against government entities may also be subject to additional notice requirements under the Utah Governmental Immunity Act, which has its own notice provisions.
Can I settle my medical malpractice claim during the 90-day notice period?
Yes. In fact, the notice period is specifically designed to encourage early settlement discussions. Many claims are resolved during this period without the need for litigation.
What is the difference between a notice of intent and a certificate of compliance?
The notice of intent is a document served on the health care provider. The certificate of compliance is issued by the Division of Professional Licensing and is a separate prerequisite except for dental claims.
Does the pre-litigation requirement apply to wrongful death claims based on medical malpractice?
Yes. Wrongful death claims arising from medical malpractice are subject to the same pre-litigation requirements under Section 78B-3-412 as other malpractice actions.
Can the notice of intent be served by email?
The statute requires service by the methods prescribed by the Utah Rules of Civil Procedure or by certified mail with return receipt requested. Email service alone would likely not satisfy the statutory requirement.
When should I start the pre-litigation process for a Utah medical malpractice claim?
You should start the pre-litigation process for a Utah medical malpractice claim as soon as you suspect that substandard medical care caused an injury. The 90-day notice period, the certificate of compliance process, and the statute of limitations all require careful coordination. Delaying even a few weeks can compress the timeline and increase the risk of missing a critical deadline. An experienced Utah medical malpractice attorney can manage these complex procedural requirements and ensure that your claim is properly presented within all applicable time limits.
Injured in an accident in Utah? Jeremy D. Eveland, MBA, JD, can help you understand your legal rights and pursue the compensation you deserve.
Call (801) 613-1472 or visit jeremyeveland.com to schedule a consultation today.
This article is for informational purposes only and does not constitute legal advice. Consult with a qualified Utah personal injury attorney for advice specific to your situation.
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