A new state law raises the standard of proof required for patients claiming errors in Utah emergency department (ED) care. The state legislature has raised the standard of proof from the traditional “preponderance of the evidence” to the higher “clear and convincing evidence” model.

The new law applies to any physician who treats patients in an ED, not just emergency or trauma staff members. “We wanted to encourage all-specialty coverage in the EDs,” says Mark Fotheringham, Vice President of Communications for the Utah Medical Association (UMA), which lobbied hard for the change.

The law applies to all clinicians, including nurse practitioners and physician assistants, who provide emergency care.

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“With this higher standard to prove a malpractice claim, we hope to encourage more specialists to return to taking ED calls,” said UMA President Cris Cowley, MD.

The law recognizes that in emergency situations, patients often deal with clinicians who do not know them and may not be able to give complete medical histories. As a result, ED clinicians may start treatment without knowledge of allergies, current medications, comorbid conditions, or access to medical records.

“Significantly, the law doesn’t change physicians’ duties to their patients, the new law doesn’t change that standard of care at all,” explains William M. McDonnell, MD, JD, who teaches at both the law school and the medical school at the University of Utah in Salt Lake City.

Instead it raises the bar for plaintiffs to prove their case “with evidence that is ‘clear and convincing’ rather than the old ‘preponderance of the evidence (51% likely)’ rule.”