1. (1) As required by Subsection 78B-3-416(3)(c)(ii), an affidavit submitted by a petitioner alleging a respondent's failure to reasonably cooperate in scheduling a prelitigation hearing shall be submitted within 180 days of petitioner's request for prelitigation panel review.

2. (2) The affidavit alleging respondent's failure to reasonably cooperate in scheduling a prelitigation hearing filed under Subsection (1) shall set forth specific factual allegations that:

   1. (a) respondent failed to reasonably cooperate in scheduling a hearing; and
   2. (b) the hearing could not be held within the jurisdictional time frame of 180 days from the date of the request for prelitigation review.

3. (3) Failure to reasonably cooperate in scheduling a hearing may include one or more of the following reasons:

   1. (a) a respondent failed to agree upon a first and second choice of dates for a prelitigation hearing;
   2. (b) a respondent failed to reasonably participate in determining the type of health care providers requested for the prelitigation hearing panel; or
   3. (c) a respondent submitted a motion for and obtained a continuance of the prelitigation hearing and failed to timely submit a notice of availability for a rescheduled hearing.
4. (4) An affidavit alleging failure to reasonably cooperate in scheduling a prelitigation hearing shall comply with Section R156-78B-6 governing pleadings and Section R156-78B-7 governing filing and service.
5. (5) A respondent may file a response to an affidavit alleging failure to reasonably cooperate in scheduling a prelitigation hearing within five days after the service of the affidavit. Any response shall be in the form of a counter affidavit.
6. (6) The Division shall review petitioner's affidavit alleging failure to reasonably cooperate in scheduling a hearing and respondent's counter affidavit, if any, and make a written determination within 15 days of the filing of petitioner's affidavit, under either Subsections 78B-3-416(3)(d)(ii)(A) or (B). The written determination shall be accompanied by a certificate of compliance or a notice to file an affidavit of merit, as appropriate.

KEY: medical malpractice, prelitigation, certificate of compliance, affidavit of merit

Date of Last Change: December 10, 2018

Notice of Continuation: January 3, 2022

Authorizing, and Implemented or Interpreted Law: 78B-3-416(1)(b)