ARNOLD v. GRIGSBY

• Decision Date: 26 August 2010
• Docket Number: No. 20060481-CA.,20060481-CA.
• Citation: 239 P.3d 294,2010 UT App 226
• Parties: Gina M. ARNOLD and Charlie S. Arnold, Plaintiffs and Appellants, v. David GRIGSBY, M.D.; et al., Defendant and Appellee.
• Court: Utah Court of Appeals

239 P.3d 294

2010 UT App 226

Gina M. ARNOLD and Charlie S. Arnold, Plaintiffs and Appellants, v. David GRIGSBY, M.D.; et al., Defendant and Appellee.

No. 20060481-CA.

Court of Appeals of Utah.

Aug. 26, 2010.

Roger P. Christensen and Karra J. Porter, Salt Lake City, for Appellants.

Larry R. White and Paul D. Van Komen, Salt Lake City, for Appellee.

Before Judges DAVIS, ORME, and VOROS.

OPINION

ORME, Judge:

¶ 1 Plaintiffs Gina M. and Charlie S. Arnold appeal the trial court's summary judgment order in favor of defendant David Grigsby, M.D., which determined that, pursuant to the generally applicable tolling statute, see Utah Code Ann. § 78-12-35 (2002), ¹ the statute of limitations was not tolled by Dr. Grigsby's departure from the state of Utah and that the Arnolds' claims were time-barred by the two-year statute of limitations contained in the Utah Health Care Malpractice Act (the Malpractice Act), see id. § 78-14-4(1). ² We previously reversed the trial court's order, concluding that Dr. Grigsby's absence from the state did in fact toll the applicable statute of limitations. See Arnold v. Grigsby (Arnold I), 2008 UT App 58, ¶ 24, 180 P.3d 188. However, the Utah Supreme Court granted certiorari; concluded that the tolling provision at issue, see Utah Code Ann. § 78-12-35, was inapplicable to the Arnolds' medical malpractice action; and remanded to us to consider whether the Arnolds' complaint was timely under the Malpractice Act's statute of limitations. See Arnold v. Grigsby (Arnold II), 2009 UT 88, ¶¶ 5, 25, 225 P.3d 192. We again reverse and remand for trial.

BACKGROUND ³

¶ 2 On July 22, 1999, Dr. Gary White performed a colonoscopy on Gina Arnold at Uintah Basin Medical Center (UBMC). The next day, Gina began experiencing pain in her lower abdomen and sought treatment at UBMC's emergency room. Dr. White determined that Gina's colon was perforated, admitted her to the hospital, and prescribed treatment with antibiotics. Gina remained hospitalized for four days, after which Dr. White discharged her, instructing her to continue taking oral antibiotics and to return to the UBMC emergency room to receive intravenous antibiotics until Dr. White could see her again three days later.

¶ 3 Despite the antibiotic treatment, Gina's condition worsened, and on August 3, 1999, she was readmitted to UBMC, where Dr. White performed exploratory laparoscopic surgery. After Dr. White had commenced the surgery, Dr. David Grigsby entered the operating room and participated in the procedure. Dr. White's operative report indicated that he was the surgeon and that Dr. Grigsby assisted him.

¶ 4 In the week that followed, Gina had two more laparoscopic surgeries at UBMC, one performed by Dr. White on August 5, 1999, and another performed by Dr. Grigsby on August 11, 1999. ⁴ A day or two after the final laparoscopy, while discussing the possibility of Gina being transferred to the care of another physician or hospital, Dr. White asked Charlie Arnold: “Have you lost faith in me? You don't trust me?” The answer to those questions was apparently in the affirmative, and on August 16, 1999, Gina was transferred to St. Mark's Hospital in Salt Lake City for further treatment.

¶ 5 In September 1999, because Gina “just knew something hadn't happened right” with her treatment at UBMC, the Arnolds retained legal counsel. On November 16, 1999, the Arnolds' counsel sent UBMC a letter requesting Gina's medical records and stating that he represented Gina “relative to treatment she received following complications arising from an initial diagnosis and treatment of her for an intestinal condition by Dr. Gary White.” The letter also stated that counsel was “still in the investigatory stage of our representation,” investigating “the possibility of claims that may be filed in relation to her initial diagnosis and/or treatment.” Eight months later, in July 2000, Dr. Grigsby departed the state, moving from Roosevelt, Utah, to Oneida, Tennessee.

¶ 6 On December 4, 2001, the Arnolds filed a Complaint and Jury Demand in district court. The complaint listed both Dr. White and Dr. Grigsby as defendants, but Dr. Grigsby was never actually served with the complaint, nor was he included in the prelitigation process.

¶ 7 In October 2003, the Arnolds deposed Dr. White. In his deposition, Dr. White testified that Dr. Grigsby became Gina's primary doctor upon participating in the August 3, 1999, laparoscopic procedure and ultimately was in charge of Gina's care; that Dr. White preferred to convert the August 3, 1999, surgery from a laparoscopic procedure into an open procedure, but Dr. Grigsby decided against it; and that although Dr. Grigsby was not physically present at the August 5, 1999, surgery, Dr. White performed the procedure that Dr. Grigsby directed, instead of a different procedure that Dr. White himself favored. Based in part on the information gleaned in Dr. White's deposition, the Arnolds filed an Amended Complaint and Jury Demand on August 6, 2004, which was served on Dr. Grigsby.

¶ 8 At his deposition in May 2005, Dr. Grigsby disputed much of Dr. White's account as outlined at Dr. White's 2003 deposition, but he acknowledged that he had a number of conversations with the Arnolds in 1999 during the time Gina received treatment at UBMC. And in their depositions in August 2005, the Arnolds testified that while Gina was still at UBMC prior to being transferred to St. Mark's Hospital, they were aware of Dr. Grigsby's participation in Gina's medical treatment.

¶ 9 In September 2005, Dr. Grigsby moved for summary judgment on the ground that the Arnolds' medical malpractice claims were barred by the two-year statute of limitations, which had expired before the December 4,2001, filing of the complaint. The trial court granted Dr. Grigsby's motion for summary judgment and dismissed the Arnolds' claims against him. The Arnolds appealed.

¶ 10 In 2008, we reversed the trial court's order granting summary judgment in favor of Dr. Grigsby. See Arnold I, 2008 UT App 58, ¶ 1, 180 P.3d 188, rev'd, 2009 UT 88, 225 P.3d 192. We relied on the “generally applicable tolling statute,” see id. (citing Utah Code Ann. § 78-12-35 (2002)), “which suspends the running of a statute of limitations when a defendant departs from Utah after a cause of action has accrued against him.” Arnold I, 2008 UT App 58, ¶ 1, 180 P.3d 188. We stated that the trial court “erred in determining that the tolling statute does not apply to Dr. Grigsby because he was amenable to service of process under Utah's long-arm statute,” id. ¶ 24, and concluded that

the tolling statute suspends the running of the statute of limitations during the time a defendant is absent from the state if he has not appointed a Utah agent to receive service of process[,] ... even if the defendant is subject to Utah's jurisdiction and amenable to service of process under Utah's long-arm statute.

Id. In response, Dr. Grigsby sought a writ of certiorari, which the Utah Supreme Court granted. See Arnold v. Grigsby, 189 P.3d 1276 (Utah 2008).

¶ 11 In 2009, the Supreme Court reversed our decision, “conclud[ing] that the tolling provisions of section 78-12-35 do not apply to the Arnolds' medical malpractice action against Dr. Grigsby.” Arnold II, 2009 UT 88, ¶ 25, 225 P.3d 192. The Supreme Court remanded the matter to us “for consideration of other issues raised on appeal that may be necessary for proper resolution of the appeal,” id., namely the Arnolds' contention that their action against Dr. Grigsby was timely under the Malpractice Act's statute of limitations, see Utah Code Ann. § 78-14-4, notwithstanding any applicability of the general tolling statute, see id. § 78-12-35. The pivotal issue now before us is whether the trial court erred in ruling, as a matter of law, that the two-year statute of limitations had expired at the time the Arnolds brought suit against Dr. Grigsby.

STANDARD OF REVIEW

¶ 12 Summary judgment may be granted only when there are no genuine issues of material fact and “the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c). “[I]n reviewing a grant of summary judgment, we analyze the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835, 841 (Utah 1996) (alteration in original) (citation and internal quotation marks omitted). “Because the determination of whether summary judgment is appropriate presents a question of law, we accord no deference to the trial court's decision and instead review it for correctness.” Id.

ANALYSIS

¶ 13 “The ... Malpractice Act requires a patient to bring a claim for malpractice no more than two years after the patient discovers or should have discovered the injury.” Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, ¶ 1, 221 P.3d 256. See Utah Code Ann. § 78-14-4(1) (2002). In other words, “a patient must discover the legal injury-that is, both the fact of injury and that it resulted from negligence-before the statute of limitations begins to run.” Daniels, 2009 UT 66, ¶ 1, 221 P.3d 256. The question of when a plaintiff knew or should have known sufficient facts to trigger a statute of limitations presents a “classic factual dispute that should be resolved by the finder of fact.” Sevy v. Security Title Co., 902 P.2d 629, 634 (Utah 1995) (citation and internal quotation marks omitted).

¶ 14 At oral argument, both parties argued-and we agree-that the Utah Supreme Court's recent decision in Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, 221 P.3d 256, is highly instructive in the case before us. In Daniels, the trial court regarded the inquiry into when the statute of limitations began to run as a factual one and instructed the jury that the statute of limitations began to run when the plaintiff discovered his medical treatment had been negligent. See id. ¶ 18. The jury decided infavor of the defendants. See id. ¶ 19....