                 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
                         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 Act 2 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
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. § 78B-
3-416(3)(b).


                                    3
                   VEGA v. JORDAN VALLEY MEDICAL
                             Opinion of the Court
    ¶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.


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                        Opinion of the Court
    ¶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 78A-
3-102(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.


                                  5
                   VEGA v. JORDAN VALLEY MEDICAL
                         Opinion of the Court
                      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 78B-
3-412(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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                          Cite as: 2019 UT 35
                         Opinion of the Court
       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 . . .)

                                   7
                  VEGA v. JORDAN VALLEY MEDICAL
                         Opinion of the Court
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
¶ 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 . . .)

                                   9
                  VEGA v. JORDAN VALLEY MEDICAL
                         Opinion of the Court
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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                         Cite as: 2019 UT 35
                        Opinion of the Court
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).


                                  11
                  VEGA v. JORDAN VALLEY MEDICAL
                         Opinion of the Court
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
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.




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