Daniels v. Gamma West Brachytherapy, LLC

• Decision Date: 02 October 2009
• Docket Number: No. 20080201.,20080201.
• Citation: 221 P.3d 256,2009 UT 66
• Parties: Ralph L. DANIELS and Tracey H. Daniels, Plaintiffs and Appellant, v. GAMMA WEST BRACHYTHERAPY, LLC; John K. Hayes; Salt Lake Regional Medical Center; and University Hospital, Defendants and Appellees.
• Court: Utah Supreme Court

221 P.3d 256

2009 UT 66

Ralph L. DANIELS and Tracey H. Daniels, Plaintiffs and Appellant, v.GAMMA WEST BRACHYTHERAPY, LLC; John K. Hayes; Salt Lake Regional Medical Center; and University Hospital, Defendants and Appellees.

No. 20080201.

Supreme Court of Utah.

October 2, 2009.

Rehearing Denied November 23, 2009.

Kay Burningham, Salt Lake City, for plaintiff.

George T. Naegle, Robert G. Wright, Brandon B. Hobbs, Zachary E. Peterson, Salt Lake City, for defendants.

DURHAM, Chief Justice:

INTRODUCTION

¶ 1 The Utah Health Care 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.We have interpreted this requirement to mean 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.In this case, the plaintiff and appellant, Ralph L. Daniels, asks this court to determine whether under this discovery rule the statute of limitations period for his claim was triggered when he discovered that he might have been treated negligently during the course of multiple procedures performed at different times and by different providers, or when he discovered that the specific treatment he received from John K. Hayes and Gamma West Brachytherapy, LLC(collectively, the Defendants) might have been negligent.We hold that the Health Care Malpractice Actstatute of limitations does not begin to run until a patient discovers or should have discovered his legal injury, including the causal event of such injury.

¶ 2 Mr. Daniels also asks this court to consider several other pretrial rulings made by the district court regarding the admission of evidence and dismissal of claims.We affirm in part and reverse in part and remand for proceedings consistent with this opinion.

BACKGROUND

I.MR. DANIELS WAS DIAGNOSED WITH AND TREATED FOR COLON CANCER

¶ 3 Mr. Daniels was diagnosed with stage II¹ colon cancer in January 2001.To treat the cancer, his surgeon and a Gamma West oncologist considered two options.The first option, being the more standard treatment for colon cancer, was to administer preoperative radiation to the locale of the cancer in order to shrink the tumor and thereby improve the likelihood that the entire tumor could be removed during surgery.The second option was to remove as much of the tumor as possible and then apply high-dose rate brachytherapy (high dose radiation)² to kill what remained of the tumor.In Mr. Daniels's case, it was determined that surgery followed by high dose radiation therapy and then external radiation beam therapy (external radiation) would provide the best treatment.

¶ 4 Before surgery and the insertion of the high dose radiation catheters, Mr. Daniels signed Gamma West's standard informed consent form.This form, he argues, failed to fully disclose numerous aspects of his radiation treatment.For example, Mr. Daniels has alleged that he was not advised nor did he consent to the experimental nature of using high dose radiation therapy for his type of cancer.He also alleges that he was not informed of the risk of radiation burns.

¶ 5 As planned, Dr. Mintz removed the tumor and Dr. Hayes, a Gamma West physician, inserted the high dose radiation catheters on January 19, 2001.Following the surgery at Salt Lake Regional Medical Center, Dr. Hayes administered high dose radiation for four days, after which the catheters were removed.About one month later, Mr. Daniels received external radiation beam therapy at University of Utah Hospital.This treatment was administered over several weeks.Mr. Daniels alleges that the combined effect of the high dose radiation and the external radiation therapies was a biological equivalent dose of 90,500 cGy.Radiation therapy typically does not exceed 5,040 cGy.

II.FOLLOWING RADIATION TREATMENT, MR. DANIELS EXPERIENCED EXTREME COMPLICATIONS

¶ 6 In the middle of his external radiation treatment, Mr. Daniels began to experience dire complications.First, a forty-year old inguinal hernia scar began to disintegrate.Mr. Daniels consulted with both his primary care physician and a radiation oncologist at the University of Utah.Neither informed him that the high dose radiation could have caused the hernia scar's breakdown.Instead, the radiation therapist indicated that it was likely due to an infection.Mr. Daniels also visited Dr. Mintz, who allegedly told Mr. Daniels that external radiation likely caused the problems with his hernia scar.³Dr. Mintz then performed surgery to repair the open wound.At the recommendation of his external radiation oncologists, Mr. Daniels returned to the University of Utah for additional external radiation treatment at the end of April 2001.

¶ 7 The next month Mr. Daniels's recent midline and colostomy incisions also began to break down.He again consulted with Dr. Mintz, who admitted him to Salt Lake Regional Medical Center.Within a few days, Mr. Daniels's two incisions and hernia scar coalesced into a sizable, infected wound.Mr. Daniels was then transferred to the University of Utah Burn Unit, where doctors performed debriding and skin grafts in an effort to lessen Mr. Daniels's complications.During the following years, Mr. Daniels underwent numerous surgeries including: "ilieostomy, ileoconduit, multiple debridements of necrotic tissue ..., surgery for blockages, nephrostomies for kidney malfunction ..., and dialysis."He continues to suffer from the complications allegedly arising out of the radiation treatment.

¶ 8 In June 2001, Mr. Daniels's wife met with Dr. Patton at the University of Utah to discuss the cause of Mr. Daniels's severe health problems.Dr. Patton told her that neither the high dose radiation nor the external radiation Mr. Daniels received could have caused his abdominal breakdown.

¶ 9 Mr. Daniels began to suspect that high dose radiation therapy was indeed the cause of his complications during the spring of 2002.At that time he was being treated in the University Hospital's Burn Unit.While there he overheard one of his treating physicians explain to the resident physicians that Mr. Daniels "had brachytherapy and had the Holy Jesus burned out of him."

III.MR. DANIELS SUED; HE LATER ADDED CLAIMS TO HIS COMPLAINT BUT WAS NOT ALLOWED TO ADD A CLAIM FOR FRAUDULENT CONCEALMENT

¶ 10 After filing a notice of intent to sue, Mr. Daniels sued Gamma West Brachytherapy, John K. Hayes, M.D., the University Hospital, and Salt Lake Regional Medical Center in December 2003 for medical negligence.⁴Following discovery, the University of Utah and Salt Lake Regional Medical Center moved for summary judgment on all claims against them.In August 2006, Mr. Daniels noted in a memorandum opposition that he might amend his complaint to add a fraudulent concealment claim depending on the outcome of discovery.The fact discovery deadline passed in September 2006.Mr. Daniels moved to amend his complaint in December 2006, alleging gross medical negligence, lack of informed consent, and breach of fiduciary duty.The trial court granted Mr. Daniels's motion.In July 2007, Mr. Daniels again moved to amend his complaint to add a fraudulent concealment claim.The trial court denied his motion, finding the amendment untimely and prejudicial.

IV.THE TRIAL COURT DENIED MR. DANIELS'S ATTEMPT TO SUPPLEMENT ONE OF HIS EXPERTS' TESTIMONY FOLLOWING THE EXPERT'S SECOND DEPOSITION

¶ 11 As part of discovery, Defendants deposed Mr. Daniels's expert radiation oncologist, Dr. Sidney Kadish, on May 26, 2006 and September 18, 2006.Dr. Kadish subsequently read another expert's deposition that was taken on October 20, 2006.After reading the deposition and again reviewing Mr. Daniels's patient records, Dr. Kadish faxed changes to his deposition on October 23, 2006.In his previous depositions, Dr. Kadish stated that the high dose radiation had damaged Mr. Daniels's left ureter; on October 23, Dr. Kadish wrote that the high dose radiation had also damaged Mr. Daniels's right ureter.Defendants filed a motion to strike the changes to Dr. Kadish's deposition.The trial court granted the motion, finding that the changes were not merely corrections to the deposition but new testimony.

V.THE TRIAL COURT DISMISSED MR. DANIELS'S CLAIM FOR PUNITIVE DAMAGES, WHICH HE BASED ON HIS CLAIMS FOR GROSS NEGLIGENCE, AND BREACH OF FIDUCIARY DUTY

¶ 12 After discovery, Defendants filed dispositive motions seeking to dismiss Mr. Daniels's claims for gross negligence, punitive damages, and breach of fiduciary duty.The court denied Defendants' motion to dismiss Mr. Daniels's gross negligence claim finding that the allegations put forth by Mr. Daniels, if proven, would support a claim for gross medical negligence.The trial court, however, granted partial summary judgment on Mr. Daniels's claim for punitive damages.In doing so, the trial court noted that an award of punitive damages requires willful or intentional conduct, while gross negligence does not.

¶ 13 Additionally, the trial court granted summary judgment on Mr. Daniels's breach of fiduciary duty claim.The Defendants argued that Utah law does not recognize any disclosure duty for physicians, and moreover, the disclosure that Mr. Daniels argued for is addressed by the informed consent statute.The trial court agreed and granted the motion.

¶ 14 Mr. Daniels's case was bifurcated for trial.The court first held a jury trial to determine whether the statute of limitations barred Mr. Daniels's claims.

VI.THE TRIAL COURT EXCLUDED EVIDENCE OF WITNESSES' INSURANCE COVERAGE

¶ 15 Prior to trial, both parties filed numerous motions in limine.Defendants' Motion in Limine 3, which is now on appeal, sought to exclude all evidence of or any reference to liability insurance.Mr. Daniels opposed this motion arguing that potential jurors should be questioned about their relation to the insurance...