Buu Nguyen v. IHC Med. Servs., Inc.
| Decision Date | 25 October 2012 |
| Docket Number | No. 20110152–CA.,20110152–CA. |
| Citation | 2012 UT App 288,720 Utah Adv. Rep. 35,288 P.3d 1084 |
| Parties | BUU NGUYEN, Plaintiff and Appellant, v. IHC MEDICAL SERVICES, INC., dba Primary Children's Medical Center; University of Utah Hospitals and Clinics; University of Utah; and State of Utah, Defendants and Appellee. |
| Court | Utah Court of Appeals |
OPINION TEXT STARTS HERE
Matthew H. Raty and Cory B. Mattson, Sandy, for Appellant.
Robert G. Wright, Brandon B. Hobbs, Zachary E. Peterson, and Cortney Kochevar, Salt Lake City, for Appellee.
Before Judges ORME, DAVIS, and ROTH.
¶ 1 On interlocutory appeal, plaintiff Buu Nguyen challenges the district court's grant of summary judgment dismissing Intermountain Health Care (IHC), which operates Primary Children's Medical Center (PCMC), from this action. The trial court held that PCMC did not have a separate and distinct legal duty to obtain Nguyen's informed consent before using a sales demonstration ventilator on his critically injured son. Nguyen argues that this issue was already decided when this court previously heard from these parties in Nguyen v. IHC ( Nguyen I ), 2010 UT App 85, 232 P.3d 529, and held that the defendants, generally, had a duty to obtain informed consent. 1 IHC contends that while this court's earlier ruling determined that a duty was owed, that duty should fall squarely on the treating physician and not extend to PCMC. Nguyen argues in the alternative that, even if not decided previously, this court should now hold that the hospital owed a duty to obtain consent, separate and distinct from the duty owed by the treating physician. We reverse and remand on the basis that, while IHC identifies the generally applicable rule, in this atypical case, where the equipment utilized is not used in the regular course of treatment, PCMC had a separate and distinct legal duty to obtain informed consent.
¶ 2 Nguyen's son suffered severe injuries in a car accident and was admitted into the pediatric intensive care unit (PICU) at PCMC for treatment. Dr. Madeline Witte was assigned to care for the child in the PICU. The child had sustained competing lung and brain injuries, and at some point Dr. Witte determined that a different course of treatment than the child was receiving might be in order. First, however, Dr. Witte felt that a CT scan of the child's brain was a “very critical” preliminary step in assessing his condition. In order to conduct the CT scan, the child needed to be transported to the radiology department on a different floor of the hospital. The child needed a high-powered ventilator to maintain his cardiac function during transport between floors. At the time, PCMC had a portable sales demo ventilator on the premises that it was considering for purchase as a life-flight transport ventilator. There is conflicting evidence as to the motivations of Dr. Witte in using the transport ventilator—whether it was a fortuitous turn of events that this unit was available, as it was the only piece of appropriate medical equipment on-site, or whether Nguyen's son was conveniently available to serve as a test patient on a day that had not yielded any potential subjects consistent with the test protocol for the ventilator. For purposes of our analysis, the distinction is irrelevant.
¶ 3 It is noteworthy, however, that Dr. Witte served as a member of an IHC committee assigned to test, evaluate, and acquire a new life-flight transport ventilator. She was also the director of PCMC's life-flight program.3 Additional members of the committee included its chair, IHC employee Tammy Bleak, an IHC life-flight nurse who also served as IHC's Children's Services Equipment Specialist; several neo-natal life-flight nurses; and an IHC clinical engineer. The sales demo ventilator was in the hospital for testing and evaluation purposes and was not intended for use in routine patient care. The committee, of which Dr. Witte was a member, had established a protocol for the testing and use of the ventilator, which included that it was to be used only on moderately ill, medically stable children. Additionally, the committee had given Dr. Witte the task of creating an informed consent document for parents to sign before the ventilator was used.
¶ 4 It is undisputed that the committee was aware that Dr. Witte was considering using the test ventilator on Nguyen's son, a critically ill patient who could not survive an interruption in ventilation. Dr. Witte called Tammy Bleak and received the committee's permission to use the device while transporting the child.4 IHC personnel involved with testing and evaluating the ventilator arrived to observe the equipment in use. A salesman employed by the vendor was also present to answer any questions about the ventilator. The committee members and other hospital personnel were aware that the ventilator was a sales demo that had not been used by the hospital and had the potential to fail.5 The ventilator had not been used to transport anyone at PCMC and had not even been connected to a patient. At the time of its use, the child was classified as critically ill and medically unstable.
¶ 5 Nguyen's son was connected to the device in the PICU and monitored for approximately an hour. The machine functioned properly during that time, providing the same level of support as the child's bedside ventilator. The child was then transported without incident to the radiology department for the CT scan. While the child was being transported back to the PICU, however, the ventilator suddenly lost power and ceased working. The child died soon after. An investigation performed by the ventilator's manufacturer determined that the ventilator likely lost power because a screw made contact with the ventilator's motherboard, causing the device to short circuit. 6 The investigation did not reveal any misuse by the health care providers and the lead investigator testified that the providers could not have known about the screw problem.
¶ 6 Nguyen argues that this court decided in Nguyen I that IHC owed a legal duty to obtain Nguyen's informed consent before using the ventilator on his son and that the trial court failed to comply with the law of the case in granting summary judgment to IHC on remand. “Reviewing whether a district court complied with the mandate of an appellate court presents a question of law, which we review for correctness.” Anderson v. Thompson, 2010 UT App 359, ¶ 3, 248 P.3d 981 (citation, brackets, and internal quotation marks omitted).
¶ 7 Alternatively, Nguyen argues that the trial court erred in granting summary judgment in favor of IHC, either because there is a duty imposed by statute, seeUtah Code Ann. § 78B–3–406(1) (2008),7 or because IHC assumed a duty. The interpretation of a statute presents a question of law reviewed under the correctness standard, affording no deference to the district court. See Utah Dep't of Transp. v. Ivers, 2009 UT 56, ¶ 9, 218 P.3d 583. “An appellate court reviews a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness, and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation marks omitted).
¶ 8 Nguyen first asserts that the district court committed reversible error in even considering IHC's motion for summary judgment. Nguyen argues that IHC was bound by the law of the case as set forth in Nguyen I and should have petitioned this court for rehearing if unhappy with what Nguyen views as our mandate rather than trying to revisit the question of its liability following our remand to the district court. See generally Thurston v. Box Elder County, 892 P.2d 1034, 1038 (Utah 1995) ( ) (internal citations omitted).
¶ 9 We disagree with Nguyen that our prior opinion necessarily held that IHC was subject to liability on informed consent grounds. We conclude that it was consistent with the remand we ordered in the first appeal “for trial or such other disposition as may now be proper,” Nguyen I, 2010 UT App 85, ¶ 18, 232 P.3d 529, for IHC to then test its theory that the duty to obtain informed consent did not extend to the hospital, even if the duty extended to the defendants generally. Cf. Halladay v. Cluff, 739 P.2d 643, 645 n. 5 (Utah Ct.App.1987) ( ). Therefore, the trial court did not err when, on remand, it considered IHC's motion for summary judgment on the issue of informed consent as it pertains to PCMC.
¶ 10 We next consider whether IHC owed an independent duty, separate and distinct from the obligation of the treating physician, to obtain Nguyen's informed consent before using the ventilator on his son. The requirements for informed consent are prescribed by statute, seeUtah Code Ann. § 78B–3–406 (2008), and require a plaintiff to establish the following to recover for a provider's failure to obtain informed consent:
(a) that a provider-patient relationship...
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...court complied with the mandate of an appellate court presents a question of law, which we review for correctness,” Nguyen v. IHC Med. Servs., Inc. , 2012 UT App 288, ¶ 6, 288 P.3d 1084 (citation and internal quotation marks omitted), “granting no deference to the district court,” State v. ......