                This opinion is subject to revision before final
                     publication in the Pacific Reporter

                                2013 UT 64


                                   IN THE
      SUPREME COURT OF THE STATE OF UTAH
           MELISSA WADDOUPS and COREY WADDOUPS,
                    Plaintiffs and Appellees,
                                      v.
                     BARRY A. NOORDA, M.D;
              INTERMOUNTAIN HEALTH CARE INC.,
                dba LOGAN REGIONAL HOSPITAL;
         CACHE VALLEY WOMEN’S CENTER; and DOES 1–X,
                    Defendant and Appellant.

                            No. 20120310
                       Filed November 1, 2013

      On Certification from the United States District Court
                     for the District of Utah

                                Attorneys:
      G. Eric Nielson, Ryan M. Springer, Michael D. Karras,
                   Salt Lake City, for appellees
          Julia M. Houser, Salt Lake City, for appellant

  ASSOCIATE CHIEF JUSTICE NEHRING authored the opinion of the
    Court, in which CHIEF JUSTICE DURRANT, JUSTICE PARRISH,
          JUSTICE LEE, and JUDGE CHRISTIANSEN joined.
            Having recused herself, JUSTICE DURHAM
          does not participate herein; Court of Appeals
              JUDGE MICHELE M. CHRISTIANSEN sat.


   ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court:
                          INTRODUCTION
    ¶ 1 The Federal District Court for the District of Utah has
certified the following question to this court:
        Does section 78B-3-425 of the Utah Code clarify
        existing law and therefore retroactively apply
        to bar negligent credentialing claims that arose
        prior to its enactment?
                       WADDOUPS v. NOORDA
                         Opinion of the Court

Utah Code section 78B-3-425 reads:
          Prohibition on cause of action for negligent
          credentialing. It is the policy of this state that
          the question of negligent credentialing, as
          applied to health care providers in malpractice
          suits, is not recognized as a cause of action.
We hold that Utah Code section 78B-3-425, because it is a
substantive amendment and contains no expression of
retroactivity, does not apply retroactively (to its effective date),
and therefore does not bar Plaintiffs’ claim which arose prior to its
enactment.
                          BACKGROUND

    ¶ 2 On May 24, 2010, Melissa Waddoups underwent several
gynecological procedures performed by Dr. Barry Noorda at
Logan Regional Hospital, an Intermountain Health Care (IHC)
facility. Mr. and Mrs. Waddoups allege Dr. Noorda negligently
performed those procedures and they suffered harm as a result.
The sole claim relevant to this appeal is the Waddoups’ fifth cause
of action against IHC alleging negligent credentialing. Mr. and
Mrs. Waddoups maintain that IHC failed to exercise reasonable
care in granting privileges to Dr. Noorda and failed to properly
credential Dr. Noorda, and as a result, he performed surgical
procedures on Mrs. Waddoups that he was not qualified to
perform. The Waddoups seek the same damages for negligent
credentialing as they do for their claims for health care
malpractice and negligence.
   ¶ 3 On May 14, 2010, this court issued its opinion in Archuleta
v. St. Mark’s Hospital.1 In that case, we were asked to decide
whether Utah Code sections 58-13-5(7),2 58-13-4(2),3 and 26-25-14


   1   2010 UT 36, 238 P.3d 1044.
   2 The title of section 58-13-5 is “Information relating to
adequacy and quality of medical care -- Immunity from liability.”
Subsection (7) reads:
    An individual who is a member of a hospital
    administration, board, committee, department,
    medical staff, or professional organization of health
    care providers, and any hospital, other health care
    entity, or professional organization conducting or
                                                               (con’t.)

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                        Opinion of the Court




       sponsoring the review, is immune from liability
       arising from participation in a review of a health care
       provider’s professional ethics, medical competence,
       moral turpitude, or substance abuse.
   3
     The title of section 58-13-4 is “Liability immunity for health
care providers on committees -- Evaluating and approving
medical care.” Subsection (2) reads:
     (2) Health care providers serving in the following
     capacities and the organizations or entities sponsoring
     these activities are immune from liability with respect
     to deliberations, decisions, or determinations made or
     information furnished in good faith and without
     malice:
          (a) serving on committees:
              (i) established to determine if hospitals and
              long-term care facilities are being used
              properly;
              (ii) established to evaluate and improve the
              quality of health care or determine whether
              provided health care was necessary,
              appropriate, properly performed, or provided
              at a reasonable cost;
              (iii) functioning under Pub. L. No. 89-97 or as
              professional standards review organizations
              under Pub. L. No. 92-603;
              (iv) that are ethical standards review
              committees; or
              (v) that are similar to committees listed in this
              Subsection (2) and that are established by any
              hospital, professional association, the Utah
              Medical Association, or one of its component
              medical societies to evaluate or review the
              diagnosis or treatment of, or the performance
              of health or hospital services to, patients
              within this state;
         (b) members of licensing boards established
         under Title 58, Occupations and Professions, to
         license and regulate health care providers; and
         (c) health care providers or other persons
         furnishing information to those committees, as
                                                                 (con’t.)

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                    WADDOUPS v. NOORDA
                     Opinion of the Court




       required by law, voluntarily, or upon official
       request.
   4  Section 26-25-1 is titled “Authority to provide data on
treatment and condition of persons to designated agencies --
Immunity from liability,” and reads:
     (1) Any person, health facility, or other organization
     may, without incurring liability, provide the following
     information to the persons and entities described in
     Subsection (2):
          (a) information as determined by the state
          registrar of vital records appointed under Title 26,
          Chapter 2, Utah Vital Statistics Act;
          (b) interviews;
          (c) reports;
          (d) statements;
          (e) memoranda;
          (f) familial information; and
          (g) other data relating to the condition and
          treatment of any person.
     (2) The information described in Subsection (1) may
     be provided to:
          (a) the department and local health departments;
          (b) the Division of Substance Abuse and Mental
          Health within the Department of Human
          Services;
          (c) scientific     and    health    care    research
          organizations affiliated with institutions of higher
          education;
          (d) the Utah Medical Association or any of its
          allied medical societies;
          (e) peer review committees;
          (f) professional review organizations;
          (g) professional societies and associations; and
          (h) any health facility’s in-house staff committee
          for the uses described in Subsection (3).
     (3) The information described in Subsection (1) may
     be provided for the following purposes:
          (a) study and advancing medical research, with
          the purpose of reducing the incidence of disease,
          morbidity, or mortality; or
                                                        (con’t.)

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                         Opinion of the Court

granted hospitals immunity from negligent credentialing claims.
A majority of this court concluded that “the legislature did not
intend to immunize negligent credentialing claims brought by
patients” in its enactment of any of these three statutes, and
“therefore formally recognize[d] negligent credentialing as a
valid common-law cause of action.”5 We held negligent
credentialing to be “simply the application of broad common law
principles of negligence,” and a “natural extension of torts such
as negligent hiring.”6
    ¶ 4 The following year, the Utah Legislature passed Senate
Bill 150, subsequently codified on May 10, 2011 as section 78B-3-
425, which reads:


           (b) the evaluation and improvement of hospital
           and health care rendered by hospitals, health
           facilities, or health care providers.
       (4) Any person may, without incurring liability,
       provide information, interviews, reports, statements,
       memoranda, or other information relating to the
       ethical conduct of any health care provider to peer
       review committees, professional societies and
       associations, or any in-hospital staff committee to be
       used for purposes of intraprofessional society or
       association discipline.
       (5) No liability may arise against any person or
       organization as a result of:
             (a) providing information or material authorized
           in this section;
            (b) releasing or publishing findings and
           conclusions of groups referred to in this section to
           advance health research and health education; or
           (c) releasing or publishing a summary of these
           studies in accordance with this chapter.
       (6) As used in this chapter:
           (a) “health care provider” has the meaning set
           forth in Section 78B-3-403; and
           (b) “health care facility” has the meaning set forth
           in Section 26-21-2.
   5   Archuleta, 2010 UT 36, ¶¶ 15–16.
   6   Id. ¶ 15 (internal quotation marks omitted).


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                        WADDOUPS v. NOORDA
                          Opinion of the Court

           Prohibition on cause of action for negligent
           credentialing. It is the policy of this state that
           the question of negligent credentialing, as
           applied to health care providers in malpractice
           suits, is not recognized as a cause of action.
This case concerns the effect of section 78B-3-425 on the
Waddoups’ claims, specifically, whether section 78B-3-425
retroactively bars Plaintiffs’ negligent credentialing claim which
accrued before the enactment of the statute.
                      STANDARD OF REVIEW
   ¶ 5 “A certified question from the federal district court does
not present us with a decision to affirm or reverse a lower court’s
decision; as such, traditional standards of review do not apply.
On certification, we answer the legal questions presented without
resolving the underlying dispute.”7
                              ANALYSIS
    ¶ 6 It is well established that “[t]he courts of this state operate
under a statutory bar against the retroactive application of newly
codified laws,” and therefore “parties’ substantive rights and
liabilities are determined by the law in place at the time when a
cause of action arises.”8        The statute barring retroactive
application of new laws contains a single exception, “[a] provision
of the Utah Code is not retroactive, unless the provision is
expressly declared to be retroactive.”9 “Thus, absent clear
legislative intent to the contrary, we generally presume that a
statute applies only prospectively.”10 “The intent to have a statute
operate retroactively may be indicated by explicit [statutory]
statements” to that effect, “or by clear and unavoidable
implication that the statute operates on events already past.”11

   7  U.S. Fid. & Guar. Co. v. U.S. Sports Specialty Ass’n, 2012 UT 3,
¶ 9, 270 P.3d 464 (internal quotation marks omitted).
   8State v. Clark, 2011 UT 23, ¶¶ 11–12, 251 P.3d 829 (internal
quotation marks omitted).
   9   UTAH CODE § 68-3-3.
   10   Warne v. Warne, 2012 UT 13, ¶ 25, 275 P.3d 238.
   11Evans & Sutherland Computer Corp. v. Utah State Tax Comm’n,
953 P.2d 435, 437 (Utah 1997).


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                         Cite as: 2013 UT 64
                        Opinion of the Court

Like all matters of statutory interpretation, we evaluate
retroactivity by first examining the text of the statute, because “[i]t
is axiomatic that the best evidence of legislative intent is the plain
language of the statute itself.”12 “Only when we find ambiguity in
the statute’s plain language need we seek guidance from the
legislative history and relevant policy considerations.”13
    ¶ 7 The statutory language in this case is a single sentence:
“It is the policy of this state that the question of negligent
credentialing, as applied to health care providers in malpractice
suits, is not recognized as a cause of action.”14 This phrase
contains no words indicative of retroactive application,15 nor does
any language appear that evinces a “clear and unavoidable
implication that the statute operates on events already past.”16
Both of the verbs which appear in the sentence are in present
tense: “is” and “is not recognized.”17 It simply cannot be said
that the use of the present tense communicates a clear and
unavoidable implication that the statute operates on events
already past. If anything, use of the present tense implies an
intent that the statute apply to the present, as of its effective date,
and continuing forward. There is nothing ambiguous about the
statute that would necessitate further analysis beyond the plain
language. However, that does not end our analysis.
   ¶ 8 In addition to the single statutory exception, we have
long recognized a distinction between substantive and procedural


   12Anderson v. Bell, 2010 UT 47, ¶	9, 234 P.3d 1147 (internal
quotation marks omitted).
   13 World Peace Movement of Am. v. Newspaper Agency Corp., 879
P.2d 253, 259 (Utah 1994).
   14   UTAH CODE § 78B-3-425.
   15 See, e.g., UTAH CODE § 19-6-302.5(3)(a) (“this act applies
retroactively”); Id. § 48-3-206 (“is effective retroactively”)
(repealed 2013); Id. § 77-40-113 (“provisions of this chapter apply
retroactively”).
   16 See, e.g., UTAH CODE § 75-7-1103(1) (“[T]his chapter applies
to: all trusts created before, on, or after July 1, 2004 . . . [and]
judicial proceedings concerning trusts commenced before July 1,
2004.”).
   17   UTAH CODE § 78B-3-425.


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                         WADDOUPS v. NOORDA
                          Opinion of the Court

laws as it relates to retroactive application of newly enacted
statutes.18 Laws that “enlarge, eliminate, or destroy vested or
contractual rights” are substantive and are barred from retroactive
application absent express legislative intent.19 However, laws
which “merely pertain[] to and prescribe[] the practice and
procedure or the legal machinery by which the substantive law is
determined or made effective” are procedural and “may be given
retrospective effect.”20 In purporting to eliminate the cause of
action of negligent credentialing, section 78B-3-425 cannot be said
to be merely procedural, but rather is clearly substantive in
nature. IHC concedes this point.
    ¶ 9 IHC argues that section 78B-3-425 is merely a clarifying
amendment and thus subject to the judicially-created exception
that “when the purpose of an amendment is to clarify the
meaning of an earlier enactment, the amendment may be applied
retroactively in pending actions.”21 However, since the time oral
argument was heard in this case, this court has decided Gressman
v. State,22 which repudiated such exception. In Gressman, we
noted that although
           our case law has occasionally referred to
           “amendments clarifying statutes” as an
           “exception” to the retroactivity ban, we have
           never applied them as such. Instead, our
           retroactivity case law has invoked this
           “exception” only in connection with statutory
           amendments that we have characterized as
           procedural. And when our cases discuss the


   18 Boucofski v. Jacobsen, 104 P. 117, 119 (Utah 1909) (“While it is
true that a party’s rights in a judgment, as a general rule, may not
be affected by legislative acts passed . . . the rule does not apply to
laws . . . which only affect matters of procedure or practice.”),
overruled on other grounds by State v. Hansen, 734 P.2d 421 (Utah
1986).
   19 Brown & Root Indus. Serv. v. Indus. Comm’n of Utah, 947 P.2d
671, 675 (Utah 1997) (internal quotation marks omitted).
   20   Id. (internal quotation marks omitted).
   21   Dep’t of Soc. Servs. v. Higgs, 656 P.2d 998, 1001 (Utah 1982).
   22   2013 UT 63, __ P.3d __.


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                          Cite as: 2013 UT 64
                          Opinion of the Court

           “clarifying amendment exception,” it is always
           in tandem with or as a counterpart to our
           analysis of the above-noted distinction
           between substance and procedure. . . . The
           governing statute . . . makes no express room
           for an exception for clarifying amendments per
           se. The sole exception spelled out explicitly by
           statute requires an express provision for
           retroactivity.23
    ¶ 10 Having repudiated the sole exception IHC relies on in
this case, our work is done. The statute is not retroactive.
    ¶ 11 We note that our repudiation of the clarifying
amendment exception does not deny the legislature the
opportunity to clarify statutes and have such clarifications act
retroactively. Rather, it requires the legislature to convey such
intent expressly in the language of the statute if it desires such
effect.
    ¶ 12 Having found that the statute does not apply
retroactively, we need not address any of the constitutional issues
raised.
                            CONCLUSION
    ¶ 13 In sum, we answer the certified question in the
negative; section 78B-3-245 of the Utah Code does not apply
retroactively to bar negligent credentialing claims that arose prior
to its enactment.




   23   Id. ¶ 16 (citations omitted) (footnotes omitted).


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