This opinion is subject to revision before final

publication in the Pacific Reporter

2019 UT 35

IN THE

SUPREME COURT OF THE STATE OF UTAH

YOLANDA VEGA,

Appellant,

v.

JORDAN VALLEY MEDICAL CENTER, LP,1

Appellees.

No. 20170866

Filed July 19, 2019

On Direct Appeal

Third District, Salt Lake

The Honorable Katie Bernards-Goodman

No. 170900581

Attorneys:

Troy L. Booher, Beth E. Kennedy, Michael J. Teter, G. Eric Nielson,

Mark W. Dahl, Lena Daggs, Salt Lake City, for appellant

Rodney R. Parker, Derek J. Williams, Nathanael J. Mitchell, Brian P. 

Miller, Frederick Mark Gedicks, Shawn McGarry, Kirk G. Gibbs, 

David C. Epperson, Salt Lake City, for appellees

JUSTICE HIMONAS authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE PEARCE, and JUSTICE PETERSEN joined.

JUSTICE HIMONAS, opinion of the Court:

_____________________________________________________________ 1 RYAN CAVANESS, RN; PHYSICIAN GROUP OF UTAH, INC.;

KRISTOFER MITCHELL, M.D.; TRACY SYDDALL, PA-C; ROBERT SWIFT,

M.D.; INTERMOUNTAIN ANESTHESIA CONSULTANTS LC; and ANGELA 

SALERNO, CRNA; are also parties to this appeal.
VEGA v. JORDAN VALLEY MEDICAL 

Opinion of the Court

2

INTRODUCTION

¶1 For reasons still unknown, Gustavo Vega, an otherwise 

healthy forty-four-year-old male, went in for a routine gallbladder 

operation and came out in a coma. He died a week later. His wife, 

Yolanda Vega, brought a medical malpractice action against Jordan 

Valley Medical Center and all related medical providers who were 

involved in Mr. Vega’s care. The district court dismissed Ms. Vega’s 

action pursuant to section 78B-3-423(7) of the Utah Health Care 

Malpractice Act2 because she failed to obtain a certificate of 

compliance from the Division of Occupational and Professional 

Licensing (DOPL). On appeal Ms. Vega challenges the 

constitutionality of the Malpractice Act on several grounds. We hold 

that the Malpractice Act violates Article VIII, section I of the Utah 

Constitution—the judicial power provision—by allowing DOPL to 

exercise the core judicial function of ordering the final disposition of

claims, like those brought by Ms. Vega, without judicial review. 

Accordingly, we find the offending provisions in the Act

unconstitutional, reverse the district court’s grant of appellees’

motion to dismiss, and remand this case for a determination on the

merits. 

BACKGROUND

¶2 In 2014, Gustavo Vega underwent a routine procedure to 

have his gallbladder removed.3 But after the conclusion of the 

surgery, Mr. Vega did not wake up. Mr. Vega had a CT scan that 

revealed “low lung volumes” and neurologists diagnosed him with 

an anoxic brain injury that occurred during the surgery or 

immediately afterwards. A cardiologist was consulted and noted in 

the record that the “events immediately following that [gallbladder] 

surgery are not clear to me.” Mr. Vega died a week after the surgery 

_____________________________________________________________ 2 At the time Ms. Vega filed her suit, section 78B-3-423(7) was 

numbered as section 78B-3-423(6). Because the texts of the two 

provisions are identical, we cite to the current version of the 

statute—section 78B-3-423(7).

3 Appellees moved to dismiss Ms. Vega’s complaint pursuant to 

Utah Rules of Civil Procedure 12(b)(1) and 12(b)(6). For purposes of 

our factual recitation, we treat rule 12(b)(1) and rule 12(b)(6) motions 

alike: “factual allegations are accepted as true and all reasonable 

inferences to be drawn from those facts are considered in a light 

most favorable to the plaintiff.” Mallory v. Brigham Young Univ., 2014 

UT 27, ¶ 32 n.1, 332 P.3d 922 (Stone, J., dissenting).
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Opinion of the Court

3

at the age of forty-four. Following his death, Ms. Vega, his wife of 

twenty years, prepared to file this malpractice action under the Utah 

Health Care Malpractice Act, UTAH CODE § 78B-3-401 to -426.

¶3 By way of background, the Malpractice Act requires 

plaintiffs to obtain a certificate of compliance from DOPL before 

filing their case in district court. UTAH CODE § 78B-3-412(1)(b). This 

was not always the case. Prior to 2010, the Malpractice Act only 

required that plaintiffs submit to a non-binding prelitigation hearing. 

See UTAH CODE § 78B-3-416(1) (2009). Regardless of the outcome of 

the prelitigation hearing, plaintiffs were permitted to file their claims 

in district court; no certificate of compliance was required. Id.

However, under the current regime, as enacted through the 2010 

amendments, a certificate of compliance is a prerequisite to a 

plaintiff filing a medical malpractice action in district court. UTAH 

CODE § 78B-3-412(1)(b).

¶4 Pursuant to the Malpractice Act, Ms. Vega filed her notice of 

intent to commence this action. Id. § 78B-3-412(1)(a).4 Parties that file 

this notice are then required to present their case to a prelitigation 

panel that consists of a doctor, a lawyer, and a layperson. Id.

§ 78B-3-416(4)(a)–(c). The prelitigation panel “proceedings are 

informal, nonbinding and . . . are compulsory as a condition 

precedent to commencing litigation.” Id. § 78B-3-416(1)(c). The 

formal rules of evidence do not apply to these hearings and 

discovery is only permitted by a finding of “special order of the 

panel, and for good cause shown demonstrating extraordinary 

circumstances.” Id. § 78B-3-417(4). DOPL may also “issue subpoenas 

for medical records directly related to the claim of medical liability.” 

Id. § 78B-3-417(2). The panel must determine whether “each claim 

against each health care provider has merit or has no merit.” Id.

§ 78B-3-418(2)(a)(i). If the panel finds that a plaintiff’s claim has

merit, DOPL issues a certificate of compliance for each meritorious 

claim, id. § 78B-3-418(3)(a), and the plaintiff can then file the case in 

district court, id. § 78B-3-412(1)(b).

_____________________________________________________________ 4 “A malpractice action against a health care provider may not be 

initiated unless and until the plaintiff . . . gives the prospective 

defendant or his executor or successor, at least 90 days’ prior notice 

of intent to commence an action.” UTAH CODE § 78B-3-412(1). Once a 

plaintiff files a notice of intent, DOPL then has 180 days to complete 

a preligitation panel review of the plaintiff’s claims. Id. § 78B3-416(3)(b). 
VEGA v. JORDAN VALLEY MEDICAL 

Opinion of the Court

4

¶5 If the panel decides that a plaintiff’s claim lacks merit, the 

Malpractice Act permits the plaintiff to nonetheless compel DOPL to 

issue a certificate of compliance by obtaining an affidavit of merit 

from a health care provider. Id. § 78B-3-423(1). DOPL will issue a 

certificate of compliance for a claim if the affidavit of merit includes

a statement that the plaintiff or the plaintiff’s attorney “consulted 

with and reviewed the facts of the case with a health care provider 

who has determined after a review of the medical record and other 

relevant material involved in the particular action that there is a 

reasonable and meritorious cause for the filing of a medical liability 

action.” Id. § 78B-3-423(2)(a). An affidavit of merit from a health care 

provider must state that:

(i) in the health care provider’s opinion, there are 

reasonable grounds to believe that the applicable 

standard of care was breached; 

(ii) in the health care provider’s opinion, the breach 

was a proximate cause of the injury claimed in the 

notice of intent to commence action; and

(iii) the reasons for the health care provider’s opinion.

See id. § 78B-3-423(2)(b).

¶6 Ms. Vega attempted to obtain a certificate of compliance 

through DOPL’s prelitigation panel. But the panel determined that 

Ms. Vega’s claim lacked merit. 

¶7 Having received a finding of no merit from the prelitigation 

panel, Ms. Vega’s only other option to obtain a certificate of 

compliance was through an affidavit of merit. See id. Ms. Vega 

retained Dr. Myer Rosenthal, a doctor at the Stanford University 

School of Medicine, to provide the necessary affidavit. Dr. Rosenthal 

was able to certify that he believed there were reasonable grounds to 

believe there was a breach in the standard of care that proximately 

caused the death of Mr. Vega, but he could not provide the details 

and reasoning for his opinion based on the medical record. Dr. 

Rosenthal stated that he “cannot specifically comment on the actions 

of the Respondents that constitute breaches in the standard of care 

due to the inadequacy of the medical records provided to [Ms. 

Vega]”and that “[t]he circumstances surrounding Mr. Vega’s injury 

are highly suspect.” DOPL determined that Ms. Vega’s affidavit was 

inadequate and asked Ms. Vega to file an amended affidavit. 

Because Ms. Vega did not provide an amended affidavit, and so did 

not comply with DOPL’s requirements, Ms. Vega did not obtain a 

certificate of compliance.
Cite as: 2019 UT 35

Opinion of the Court

5

¶8 Ms. Vega filed suit against appellees four months later 

without the certificate of compliance. Appellees filed a motion to 

dismiss with prejudice citing Utah Code section 78B-3-423(7) of the 

Malpractice Act, which states that “[i]f a claimant or the claimant’s 

attorney does not file an affidavit of merit as required . . . the 

division may not issue a certificate of compliance for the claimant 

and the malpractice action shall be dismissed by the court.” (emphasis 

added). Ms. Vega opposed the motion to dismiss, arguing that the 

Malpractice Act violated several provisions of the Utah Constitution. 

Specifically, Ms. Vega argued that the Malpractice Act violates the 

separation of powers doctrine, the wrongful death provision, the 

open courts clause, the uniform operation of laws clause, and the 

due process clause of the Utah Constitution. Citing the inadequacy 

of prelitigation discovery and the lack of clear physician notes, the 

district court determined that “it [was] impossible [for Ms. Vega] to 

comply with what DOPL is asking,” and therefore Ms. Vega could 

never cure the deficiency in her affidavit. The district court further

determined that dismissing the case without prejudice to allow 

Ms. Vega to seek the opinion of another expert would be futile.

Accordingly, the district court granted the motion to dismiss with 

prejudice.5

¶9 Ms. Vega appealed to this court, preserving her claims that 

the Malpractice Act violates the separation of powers provisions, the 

wrongful death provision, the due process clause, the open courts 

provision, and the uniform operation of laws provision of the Utah 

Constitution. 

¶10 We exercise jurisdiction under Utah Code section 78A3-102(3)(j).

_____________________________________________________________ 5 The district court applied the plain language of the statute and 

decided to “let the higher court make the decisions” regarding its 

constitutionality. This hands-off approach to constitutional questions 

fundamentally misunderstands the obligations of a district court

judge. While this court has the final say as to constitutional 

interpretation, the judicial function of the lower courts is not 

optional; it is the duty of the courts to reason through each case and 

issue decisions based on sound and thorough legal analysis, 

including constitutional analysis. We are meant to be the final 

review—not the only review—of such issues. 
VEGA v. JORDAN VALLEY MEDICAL 

Opinion of the Court

6

STANDARD OF REVIEW

¶11 We review constitutional and statutory interpretation issues

for correctness, granting no deference to the district court. Schroeder 

v. Utah Attorney Gen.’s Office, 2015 UT 77, ¶ 16, 358 P.3d 1075.

ANALYSIS

¶12 Ms. Vega’s facial challenge to the Malpractice Act raises 

several important issues of constitutional law. We presume that 

legislative enactments are constitutional and where possible will 

construe them as complying with our state and federal constitutions. 

See State v. Drej, 2010 UT 35, ¶ 9, 233 P.3d 476. The presumption of 

constitutionality also means that we will seek to resolve doubts 

about a statute’s validity in favor of constitutionality, and will not 

declare a legislative enactment invalid unless it clearly violates a 

constitutional provision. See, e.g., State v. Angilau, 2011 UT 3, ¶ 7, 245 

P.3d 745; Merrill v. Utah Labor Comm’n, 2009 UT 26, ¶ 5, 223 P.3d 

1089; In re Estate of S.T.T., 2006 UT 46, ¶ 26, 144 P.3d 1083; Jones v. 

Utah Bd. of Pardons & Parole, 2004 UT 53, ¶ 10, 94 P.3d 283. Moreover,

in a facial challenge to a statute, like Ms. Vega’s, we will only 

overturn the will of the legislature when “the statute is so 

constitutionally flawed that no set of circumstances exists under 

which the [statute] would be valid.” Gillmor v. Summit Cty., 2010 UT 

69, ¶ 27, 246 P.3d 102 (alteration in original) (citation omitted) 

(internal quotation marks omitted). 

¶13 Ultimately, we conclude that Utah Code section 78B3-412(1)(b), which requires a certificate of compliance from DOPL in 

order for a plaintiff, like Ms. Vega, to initiate a malpractice action 

against a health care provider, is unconstitutional. Accordingly, 

those sections of the Malpractice Act that require a plaintiff to obtain 

a certificate of compliance prior to filing a lawsuit in the district 

court must be stricken from the Act. Additionally, we declare the 

language in Utah Code section 78B-3-423(7), which mandates a 

dismissal of any malpractice action filed without a certificate of 

compliance, to be unconstitutional. Because section 423 cannot stand 

alone or serve a purpose without section 423(7), we find the entirety 

of section 423 and all language throughout the act that refers to 

affidavits of merit to be unconstitutional.

I. OUR SEPARATION OF POWERS AND CORE JUDICIAL 

FUNCTIONS JURISPRUDENCE

¶14 Ms. Vega’s challenge to the statutory regime implicates two 

related, but distinct, constitutional provisions: the separation of 

powers ensconced in Article V and the judicial power vested in 

Article VIII. Article V, section I of the Utah Constitution states:
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Opinion of the Court

7

The powers of the government of the State of Utah 

shall be divided into three distinct departments, the 

Legislative, the Executive, and the Judicial; and no 

person charged with the exercise of powers properly 

belonging to one of these departments, shall exercise 

any functions appertaining to either of the others, 

except in the cases herein expressly directed or 

permitted.

And Article VIII, section I states in relevant part: “The judicial power 

of the state shall be vested in a Supreme Court, in a trial court of 

general jurisdiction known as the district court, and in such other 

courts as the Legislature by statute may establish.”

¶15 While Article V regulates and guides the apportionment of 

authority and function between the branches of government, the 

core judicial power vested in the courts by Article VIII is always 

retained by the judiciary—regardless of whether the party 

attempting to exercise a core judicial function belongs to another 

branch of the government.6 In interpreting Article VIII we have said 

_____________________________________________________________ 6 We also take this opportunity to clarify the holding in Jones v. 

Utah Board of Pardons & Parole, 2004 UT 53, 94 P.3d 283. In Jones, we 

held that the statute empowering the Board of Pardons and Parole to 

issue retaking warrants did not violate Article V or Article VIII. With 

respect to the core judicial function challenge under Article VIII, we 

reasoned that because the Board of Pardons and Parole was not a 

court of record, our line of core judicial function cases did not apply 

in an analysis of the limits of the Board’s powers. Id. ¶ 17. We also 

noted that, in any event, the ability to issue retaking warrants was 

not a core judicial function. Id. ¶ 20. However, we now disclaim any 

of the dicta in Jones suggesting that our core judicial function 

jurisprudence does not apply outside of courts of record. Because we 

held that issuing retaking warrants was not a core judicial function, 

it was immaterial whether the retaking warrants were being issued 

by a court of record or a court not of record, and the discussion 

regarding courts of record is dicta. Core judicial functions under 

Article VIII remain the province of the judiciary and “to the extent 

that [any grant of authority] purports to vest ultimate judicial power 

. . . in persons who have not been duly appointed as article VIII 

judges,” within or without courts of record, we retain the ability to 

carefully circumscribe constitutional limits and safeguard the 

judicial power vested in Article VIII section I. Salt Lake City v. Ohms, 

(continued . . .)
VEGA v. JORDAN VALLEY MEDICAL 

Opinion of the Court

8

that the “explicit vesting of jurisdiction in the various courts of the 

state is an implicit prohibition against any attempt to vest such 

jurisdiction elsewhere.” Salt Lake City v. Ohms, 881 P.2d 844, 849

(Utah 1994). Additionally, the “[c]ore functions or powers of the 

various branches of government are clearly nondelegable under the 

Utah Constitution.” Id. at 848. Notably, the core judicial function of 

courts includes “the power to hear and determine controversies 

between adverse parties and questions in litigation.” Timpanogos 

Planning & Water Mgmt. Agency v. Cent. Utah Water Conservancy Dist., 

690 P.2d 562, 569 (Utah 1984) (internal quotation marks omitted). 

However, “[c]ore judicial functions do not include functions that are 

generally designed to assist courts, such as conducting fact finding 

hearings, holding pretrial conferences, and making 

recommendations to judges.” State v. Thomas, 961 P.2d 299, 302 (Utah 

1998) (internal quotation marks omitted). The notable distinction—

between assistance and authority—implicates the ultimate power to 

dispose of a claim or cause of action. We have clearly stated that it is 

unconstitutional for anyone but “duly appointed judges” subject to 

“constitutional checks and balances” to adjudicate cases and enter 

final judgments. See Ohms, 881 P.2d at 851, 855. Because we find that 

the Malpractice Act violates Article VIII’s grant of the judicial power,

we need not examine Ms. Vega’s Article V arguments. 

II. DOPL EXERCISES CORE JUDICIAL FUNCTIONS UNDER THE 

UTAH MEDICAL MALPRACTICE ACT IN VIOLATION OF 

ARTICLE VIII SECTION I OF THE UTAH CONSTITUTION

¶16 There is a clear line between permissible statutory 

prescriptions for pretrial conferencing or litigation assistance, and 

full-on encroachments of the judicial power. The legislature can 

establish pretrial panels, commissioners, and all kinds of assistance 

for a judicial determination without running afoul of Article VIII.

However, the 2010 enactments and amendments to the Malpractice

Act, which require dismissal of an action absent a certificate of 

compliance from DOPL, exceed any offer of mere assistance to the 

courts and instead ultimately represent an exercise of core judicial 

functions. 

¶17 Again, when reviewing the construction of statutes, “[t]he 

general rule is that statutes, where possible, are to be construed so as 

to sustain their constitutionality.” Gallivan v. Walker, 2002 UT 89, 

 

881 P.2d 844, 855 (Utah 1994). Any extraneous language in Jones that

contradicts this reality is hereby disclaimed.
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Opinion of the Court

9

¶ 87, 54 P.3d 1069 (citation omitted) (internal quotation marks 

omitted). Therefore, “if a portion of the statute might be saved by 

severing the part that is unconstitutional, such should be done.” 

State v. Lopes, 1999 UT 24, ¶ 18, 980 P.2d 191 (citation omitted)

(internal quotation marks omitted). “[W]e look to legislative intent” 

to determine whether or not a statutory subsection is severable from 

the whole scheme. Gallivan, 2002 UT 89, ¶ 88 (citation omitted) 

(internal quotation marks omitted). This means that we examine 

legislative intent and ask whether the legislature would have 

intended to enact the statute with the stricken provision severed. If, 

as in this case, there is no severability provision in the statute, or, 

more generally, if the legislature’s intent is not expressly stated, we 

“turn to the statute itself, and examine the remaining constitutional 

portion of the statute in relation to the stricken portion. If the 

remainder of the statute is operable and still furthers the intended 

legislative purpose, the statute will be allowed to stand.” Midvale

City. Corp. v. Haltom, 2003 UT 26, ¶ 54, 73 P.3d 334 (citation omitted) 

(internal quotation marks omitted); see also Berry ex rel. Berry v. Beech 

Aircraft Corp., 717 P.2d 670, 686 (Utah 1985) (articulating that 

legislative intent may be determined by asking “whether the 

remaining portions of the act can stand alone and serve a legitimate 

legislative purpose”).

¶18 As discussed above, section 418 of the Malpractice Act 

mandates that plaintiffs participate in a prelitigation panel after 

filing their notice of intent. After a would-be plaintiff has compiled 

their case and brought it before the panel, the panel “render[s] its 

opinion in writing . . . and determine[s] on the basis of the evidence 

whether . . . each claim against each health care provider has merit or 

has no merit.” UTAH CODE § 78B-3-418(2)(a). Based on this 

proceeding the panel renders an opinion on the claimant’s case. Fine. 

However, section 418(2)(b) also provides that “[t]here is no judicial 

or other review or appeal of the panel’s decision or 

recommendations.” Therefore, the framework created by the 2010 

enactments and amendments, specifically Utah Code section 78B-3-

412(1)(b)—which makes the certificate of compliance mandatory in 

order to file a medical malpractice case in court—and Utah Code 

section 78B-3-423(7)—which mandates that the courts dismiss all 

actions in which a certificate of compliance has not been issued—

function to give DOPL the power to finally dispose of claims at the 

direct expense of the judiciary.7 The facts of Ms. Vega’s case have 

_____________________________________________________________ 7 Prior to 2010, the fact that the panel opinion could not be 

reviewed by a court did not create a constitutional problem. 

(continued . . .)
VEGA v. JORDAN VALLEY MEDICAL 

Opinion of the Court

10

illustrated this constitutional problem with the offending sections of 

the Malpractice Act.

¶19 As discussed, section 78B-3-412(1)(b) mandates that a 

plaintiff receive a certificate of compliance from DOPL before 

initiating a malpractice action in court. If a plaintiff files a 

malpractice action in court without having received a certificate of 

compliance from DOPL, “the malpractice action shall be dismissed.” 

UTAH CODE § 78B-3-423(7). If this was a mere non-discretionary 

prerequisite, and DOPL was simply tasked with ensuring that 

Ms. Vega had complied with the statute’s paperwork, marshalling,

and claims articulation standards, it may have passed constitutional 

muster. However, DOPL does—and in Ms. Vega’s case, did—

exercise discretion both in its assessment of the merits of claims at 

prelitigation panel hearings, and again in its approval or rejection of 

a claimant’s affidavit of merit. And, because section 412(1)(b) makes 

it so that a malpractice action “may not be initiated” without a 

certificate of compliance, and section 423(7) mandates that 

malpractice actions filed without a certificate of compliance “shall be 

dismissed by the court,” DOPL’s discretion operates by design in 

complete insulation from the courts; the interplay between section 

412(1)(b), section 423(7), and section 418(2)(b) vests DOPL with the 

power to hear and determine the final disposition of controversies 

between parties. The cumulative action of this statutory regime 

violates Article VIII, section I.

¶20 If there is no review or appeal to the courts, then the ruling 

of the panel is not a recommendation or an opinion—it is an 

authoritative and final ruling on whether a claim has merit. It is a 

total disposition of a case, outside of the courts, without any 

standard judicial process or the consent of the parties. And as we 

said in Salt Lake City v. Ohms, “the ultimate judicial power of 

entering final judgments” belongs to the courts alone. 881 P.2d 844, 

855 (Utah 1994).8 “The term judicial power of courts is generally 

 

Would-be claimants could still file their actions in court regardless of 

the determination made by DOPL; Utah Code section 78B-3-418(2)(b) 

did not fundamentally abridge the judicial power because the 

panel’s decision, while not reviewable, did not impact whether a 

claimant could file in court.

8 This is different in kind from offering assistance to judges. 

While a judge “can utilize referees, court commissioners, and other 

assistants for various purposes, those persons cannot exercise that 

(continued . . .)
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Opinion of the Court

11

understood to be the power to hear and determine controversies 

between adverse parties and questions in litigation.” Id. at 849

(internal quotation marks omitted). It is the power to make that final 

determination that the Malpractice Act vests unassailably in DOPL. 

The panel heard Ms. Vega’s case and made a determination. And it 

did so—by design—in complete isolation from the courts, the proper 

wellspring of the judicial power.9 Without judicial review of the 

panel opinion—or the ability to file in court regardless of the panel’s 

determination—the panel has exercised the judicial power in 

violation of Article VIII, section I.

¶21 As previously stated, section 423 explains the requirements 

for a claimant seeking to file an affidavit of merit with DOPL. But 

what if, as it did here, DOPL finds such an affidavit insufficient? 

Under Utah Code section 78B-3-423(7), “the division may not issue a 

certificate of compliance for the claimant and the malpractice action 

shall be dismissed by the court.” And, like the prelitigation panel’s

opinion of merit, there is no review or appeal of this decision. 

Appellees and amicus curiae make much of the restrictions placed 

on DOPL in assessing the adequacy of an affidavit of merit. In their 

views, DOPL cannot reject a compliant affidavit and cannot certify a 

deficient one. No discretion, no problem. But this omits the most 

important question: who decides whether an affidavit is sufficient or 

compliant? In this case, DOPL found that Dr. Rosenthal’s affidavit

satisfied sections 423(2)(b)(i) and (ii) of the statutory regime. 

However, DOPL asserted that Dr. Rosenthal’s affidavit was 

insufficient because Dr. Rosenthal did not give a satisfactory reason 

for his opinion in compliance with section 423(2)(b)(iii). 

Dr. Rosenthal noted that because the records regarding Mr. Vega’s 

surgery were inadequate, he could not give more specific reasons for 

his opinion. He stated only that “there are reasonable grounds to 

believe” that the standards of care were breached in Mr. Vega’s case. 

The ability to determine that the quality of his reasoning was 

 

judge’s ultimate judicial power, for such is a nondelegable core 

judicial function.” Ohms, 881 P.2d at 848.

9 This case is about ultimate authority. Who is it that enforces the 

judgment of DOPL? It is DOPL exclusively, and with authority 

properly belonging to the courts. “[C]ore judicial powers include 

the authority to hear and determine justiciable controversies as well 

as the authority to enforce any valid judgment, decree or order.

Ohms, 881 P.2d at 849 (citation omitted) (internal quotation marks 

omitted). 
VEGA v. JORDAN VALLEY MEDICAL 

Opinion of the Court

12

inadequate reveals a monumental discretionary grant to DOPL; the

rejection of Dr. Rosenthal’s affidavit was an exercise of a core judicial 

function by DOPL.

¶22 To be clear, we do not intend to nitpick whether this 

decision was right or wrong. That is not the problem. Rather we 

simply highlight the obvious truth: it was a decision to find 

Dr. Rosenthal’s statement regarding the reasons for his opinion to be 

inadequate. Dr. Rosenthal stated that he could not “specifically 

comment on the actions of the Respondents that constitute breaches 

in the standard of care due to the inadequacy of the medical 

records.” It is unclear why DOPL determined that this is not an 

adequate reason, or merely a reason, for his opinion and therefore not 

a satisfactory answer to subsection 423(2)(b)(iii). But even if 

Dr. Rosenthal’s affidavit was indeed inadequate, the real issue is 

who gets to make that final determination: DOPL. It may be true that 

section 418(3) compels DOPL to certify all compliant affidavits. But 

DOPL shall issue certification only if, in its own determination, the 

plaintiff complied. And its determination is not subject to judicial 

review or appeal. This violates our grant of judicial power under 

Article VIII.

¶23 We understand and appreciate that rising health care costs 

are a tremendous problem facing both our state and the nation writ 

large. So too is it completely within the purview of the legislature to 

decide how and where to tackle this problem. If, in the legislature’s 

judgment, frivolous lawsuits are a major contributing factor to 

increased costs of care, it has the power and prerogative to attempt 

to mitigate any and all deleterious effects. However, regardless of 

the wisdom of any such approach, the legislature’s solution is still 

subject to the Utah Constitution, which vests judicial power in the 

courts under Article VIII, section I. This judicial power cannot be 

abrogated or eliminated by statute. But that is what the 2010 

amendments to the Malpractice Act did by empowering DOPL to 

make final judgments and dispose of claims unbound from and 

isolated from a judicial check and supervision of its authority.

¶24 Because the Malpractice Act remains operable without 

section 412(1)(b) and section 423(7), we leave intact and find 

constitutional the rest of the amended statute. We believe that the 

Malpractice Act as it existed prior to its amendment in 2010 may 

continue to serve a purpose once Utah Code section 78B-3-412(1)(b) 

and Utah Code section 78B-3-423(7) have been excised. However, all 

of section 423—the section that outlines the procedures for obtaining 

an affidavit of merit—and all language throughout the amended act 

that refers to affidavits of merit must also be found unconstitutional. 
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Opinion of the Court

13

As we noted above, in severing the offending portions of a statutory 

enactment we ask “whether the remaining portions of the act can 

stand alone and serve a legitimate legislative purpose.” Berry ex rel. 

Berry v. Beech Aircraft Corp., 717 P.2d 670, 686 (Utah 1985). Once 

section 423(7) is removed there is no longer any reason why a 

claimant would pursue an affidavit of merit. A panel decision 

finding that a claim is without merit will not stop a plaintiff from 

filing in court, and so all procedures for securing a certificate of 

compliance via an affidavit of merit will never be used. This portion 

therefore serves no further purpose. The Malpractice Act in its 

entirety, however, still prescribes useful noticing procedures, and the

prelitigation panel functions to guide and solidify claims before they 

reach court. We envision this judgment as a partial return to the 

pre-2010 regime, in which the prelitigation panel was free to operate 

in its role as an advisory committee charged with reviewing a 

plaintiff’s action and issuing an opinion as to merit. That opinion 

remains unreviewable under section 418 but, without section 

412(1)(b) and section 423, the panel’s review remains merely an 

opinion and is thereby subservient to the courts’ power to hear and 

dispose of a plaintiff’s case. 

CONCLUSION

¶25 Article VIII, section I of the Utah Constitution vests the 

judicial power of the state in the Supreme Court “and in such other 

courts as the Legislature by statute may establish.” The 2010 

amendments to the Malpractice Act empower DOPL to hear and 

dispose of medical malpractice claims on a final non-appealable 

basis in violation of Article VIII. We therefore hold that Utah Code 

section 78B-3-412(1)(b) and Utah Code section 78B-3-423 are facially 

unconstitutional and remand Ms. Vega’s case to the district court to 

be tried on its merits. Reversed.