Deschamps v. Pulley, 890409-CA

• Decision Date: 13 December 1989
• Docket Number: No. 890409-CA,890409-CA
• Citation: 784 P.2d 471
• Parties: Michelle DESCHAMPS, personally, and as personal representative of the Estate of Theda E. Schulz, Plaintiff and Appellant, v. Lee PULLEY, M.D., and FHP of Utah d/b/a FHP Medical Center, Ogden, Defendants and Respondents.
• Court: Utah Court of Appeals

Page 471

784 P.2d 471

Michelle DESCHAMPS, personally, and as personal representative of the Estate of Theda E. Schulz Plaintiff and Appellant, v. Lee PULLEY, M.D., and FHP of Utah d/b/a FHP Medical Center Ogden, Defendants and Respondents.

No. 890409-CA.

Court of Appeals of Utah.

Dec. 13, 1989.

David E. West and David A. Reeve, Salt Lake City, for plaintiff and appellant.

Jesse C. Trentadue, Stewart M. Hanson, Jr. and Francis J. Carney, Salt Lake City, for defendants and respondents.

Before BENCH, BILLINGS, and GREENWOOD, JJ.

BILLINGS, Judge:

Appellant Michelle Deschamps ("Ms. Deschamps") filed a wrongful death and survival action alleging medical malpractice. The trial court granted defendant health care providers' motion for summary judgment concluding the action was barred under the medical malpractice statute of limitations, Utah Code Ann. § 78-14-4 (1987). We affirm.

Ms. Deschamps is the surviving daughter and personal representative of her deceased mother, Theda E. Schulz. Between June 29, 1984, and August 1, 1984, Dr. Pulley, a practicing physician employed by defendant FHP at its center in Ogden, Utah, treated Mrs. Schulz for shoulder and chest pain. Dr. Pulley prescribed a regimen of drugs which Ms. Deschamps alleges induced a terminal disease known as vasculitis. As a result of this disease, Mrs. Schulz was hospitalized on August 1, 1984, where she remained until her death on October 30, 1984.

Prior to her death, Mrs. Schulz was unhappy with her medical progress and thus contacted an attorney, Mr. Hasenyager, to examine the facts surrounding her medical treatment. On September 20, 1984, Mrs. Schulz executed a medical release which instructed FHP to release her medical records to Mr. Hasenyager. Mr. Hasenyager reviewed Mrs. Schulz's medical records and the medical literature on vasculitis over the next few months. Before Mrs. Schulz's death in October 1984, Mr. Hasenyager obtained a discouraging report from the Department of Pharmacy at the University of Utah.

After her mother's death, Ms. Deschamps asked Mr. Hasenyager to continue his investigation and executed another release of medical records to accommodate his investigation into what she believed was the negligent treatment of her mother by respondent health care providers.

On December 31, 1984, Mr. Hasenyager filed a Notice of Intent to Commence an Action against Dr. Pulley and FHP as required by Utah Code Ann. § 78-14-8 (1987). The notice generally stated that: respondents had negligently failed to immediately withdraw Theda Schulz from all medications capable of causing vasculitis, which led to her death; respondents had failed to start her on the appropriate steroid therapy; and the estate of Theda Schulz intended to commence an action for medical malpractice against FHP and Dr. Pulley. Ms. Deschamps claims she was not aware of the filing of this notice.

Thereafter, Mr. Hasenyager sought the advice of a physician from the University of Pennsylvania School of Medicine. The doctor informed Mr. Hasenyager that his client did not have a cause of action for malpractice. Mr. Hasenyager informed Ms. Deschamps of the adverse expert opinion and closed his file.

Ms. Deschamps, however, continued to feel "uneasy" about the circumstances surrounding her mother's death and retained another attorney, Mr. Reeve, to continue the investigation.

In May 1986, Mr. Reeve received a report from another physician confirming his belief that FHP and Dr. Pulley had deviated from standard medical practice in the treatment of Mrs. Schulz, causing her premature death. Mr. Reeve, unaware of Mr. Hasenyager's activity, again filed a Notice of Intent to Commence Action on June 16, 1986.

On January 14, 1988, after Ms. Deschamps's claim was denied by a prelitigation panel, she filed the complaint in this action. The complaint was met by a motion for summary judgment claiming her action was time-barred under Utah Code Ann. § 78-14-4(1) (1987). The district court granted respondent health care providers' motion finding that Ms. Deschamps, as a matter of law, knew or reasonably should have known of her malpractice claim more than two years before she filed her complaint.

Ms. Deschamps brings this appeal alleging that she did not know or could not have reasonably known of health care providers' negligence until May 1986, when the third physician consulted confirmed that she had an actionable malpractice claim as a result of her mother's death. She therefore claims this action was filed within two years after she learned of health care providers' negligence and the trial court erred in granting summary judgment against her.

"In reviewing a summary judgment, this Court will view the facts in a light most favorable to the party opposing the motion and will allow the summary judgment to stand only if the movant is entitled to summary judgment as a matter of law on the undisputed facts." Brower v. Brown, 744 P.2d 1337, 1338 (Utah 1987) (citing Barlow Soc'y. v. Commercial Sec. Bank, 723 P.2d 398, 399 (Utah 1986)). See also D & L Supply v. Saurini, 775 P.2d 420, 421 (Utah 1989). Thus, we review the evidence in a light most favorable to Ms. Deschamps's position.

In this case, we are required to consider what the term "discovery of injury" means in Utah's medical malpractice statute of limitations. This statute provides, in pertinent part:

No malpractice action against a health care provider may be brought unless it is commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs, but not to exceed four years after the date of the alleged act, omission, neglect or occurrence....

Utah Code Ann. § 78-14-4(1) (1987). ¹

The Utah Supreme Court in Foil v. Ballinger, 601 P.2d 144 (Utah 1979), considered what "discovery of injury" means in section 78-14-4. In Foil, the plaintiff did not learn of the defendant doctor's negligence until three-and-a-half years after it occurred, when an Industrial Commission medical panel identified the negligent treatment. Id. at 146. The court reversed the trial court's dismissal of plaintiff's action as untimely, stating:

[W]hen injuries are suffered that have been caused by an unknown act of negligence by an expert, the law ought not to be construed to destroy a right of action before a person even becomes aware of the existence of that right.

Id. at 147. Citing concerns with the filing of unfounded claims and the temptation for health care providers to fail to advise patients of mistakes until after the limitations period has run, the court settled upon an interpretation of injury as it appears in section 78-14-4 to mean "legal injury." Id. at 148. The court held:

[These reasons] favor the view that the two-year provision does not commence to run until the injured person knew or should have known that he had sustained an injury and that the injury was caused by negligent action.

Id.

Thus, under Foil, the statutory two-year limitations period does not commence to run until the injured person (1) knows or should know that she has sustained an injury, and (2) knows or should know that this injury was caused by negligence.

In this case, we focus on the second prong of the Foil legal injury test--knowledge of negligence. The narrow question presented is when did Ms. Deschamps know or should she have known that her mother's death was caused by medical negligence. Ms. Deschamps claims that she could not know of the legal injury under section 78-14-4 until she obtained a favorable expert opinion confirming her lay suspicion of negligence. Health care providers, on the other hand, argue that it is not "certainty" knowledge, but reasonable "inquiry" knowledge, which begins the running of the two-year statutory period.

In Hove v. McMaster, 621 P.2d 694 (Utah 1980), the Utah Supreme Court focused on knowledge of negligence under the Foil legal injury standard. In Hove, a dentist's injection of an anesthetic caused a nurse to suffer neurological complications. Id. at 695-96. She immediately and continually suffered discomfort and consulted several doctors about the problem. Id. at 695. However, no physician specifically attributed her ailments to the injection until three-and-a-half years later. Id. at 696. The trial court found her malpractice action against the dentist was barred by section 78-14-4. She appealed claiming, as Ms. Deschamps does in this case, that she first became aware of her legal injury only when a physician finally diagnosed that her problem was a result of the improper injection. The Utah Supreme Court upheld the trial court's ruling that dismissed her claim as untimely. Id. The court concluded that because of her immediate symptoms, her experience as a nurse with injections, and the fact she had reported the problem to several doctors, that "[p]laintiff could be expected to have recognized the possibility that the recurring discomforts were the result of the injection and that a proper injection would not have caused the alleged injury." Id. at 696. Thus, the supreme court in Hove rejected the position urged by Ms. Deschamps that she first became aware of her legal injury only when a physician connected her mother's death with legal negligence.

This court recently upheld the granting of summary judgment under section 78-14-4, finding that the plaintiff as a matter of law knew that his injuries were caused by medical malpractice more than two years before he filed his complaint. Floyd v. Western Surgical Assocs., Inc., 773 P.2d 401, 405 (Utah Ct.App.1989). We rejected the plaintiff's argument that he did not know of his legal injury because he was led to believe his symptoms were unavoidable side effects of his treatment. Id. at 403. Again, this court previously has rejected the position urged by Ms. Deschamps that she did not know of her mother's legal injury because she was led to believe her mother's death...