Jensen v. IHC Health Servs., Inc.

• Decision Date: 17 August 2020
• Docket Number: No. 20190026,20190026
• Citation: 472 P.3d 935
• Parties: Erik JENSEN, Appellant, v. IHC HEALTH SERVICES, INC. dba LDS Hospital, Appellee.
• Court: Utah Supreme Court

472 P.3d 935

Erik JENSEN, Appellant,

v.IHC HEALTH SERVICES, INC. dba LDS Hospital, Appellee.

No. 20190026

Supreme Court of Utah.

Heard March 9, 2020

Filed August 17, 2020

Charles H. Thronson, Salt Lake City, for appellant

Nathan W. Burbidge, Paul D. Van Komen, Patrick L. Tanner, Salt Lake City, for appellee

Justice Petersen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Pearce joined.

Justice Petersen, opinion of the Court:

INTRODUCTION

¶1 Erik Jensen suffered a cardiac arrest

after undergoing abdominal surgery at LDS Hospital. His heart did not beat for over fifteen minutes, and he suffered brain damage as a result. Just under five years later, he filed this medical malpractice claim against LDS Hospital.

¶2 LDS Hospital requested a bifurcated trial to first determine if Jensen had missed the applicable two-year statute of limitations. The jury found that he had. And the trial court entered judgment against Jensen.

¶3 Jensen appeals the judgment, arguing that the trial court erred in its jury instruction defining the "discovery of legal injury," which starts the running of the statute of limitations in medical malpractice actions.

¶4 We conclude the instructions as a whole were correct. We affirm.

BACKGROUND

¶5 On March 26, 2010, Erik Jensen went to the emergency room at LDS Hospital, an IHC Health Services facility, "with complaints of abdominal pain that had been going on for a few hours." After undergoing a computed tomography

,¹ Jensen was prepared for and sent to "the operating room for a diagnostic laparoscopy, which [was] subsequently converted to an open laparotomy because he had an unusual inflammatory reaction in his abdomen." After the surgery, Jensen remained in the hospital to recover. He did "fairly well" for the first few days. But then he experienced complications and was transferred to the intensive care unit.

¶6 The hospital staff conducted a second surgery to ensure there was nothing wrong with Jensen's abdomen, after which he returned to the intensive care unit. On the morning of April 1, 2010, Jensen experienced cardiac arrest

and for "15 to 17 minutes" his heart did not beat. As a result, Jensen suffered brain damage. He was then transferred to a different IHC Health Services facility.

¶7 On April 26, 2010, Jensen signed a power of attorney authorizing his mother to act on his behalf. Jensen and his mother met with Colin King, a medical malpractice attorney, to discuss a potential malpractice action. As part of his investigation into the potential claim, King requested Jensen's medical records from LDS Hospital and sent them to two different experts. After more than a year of investigation, King declined to represent Jensen. King advised Jensen's mother that while LDS Hospital may have provided substandard care in some respects, it would be difficult to prove that this made any difference to Jensen's outcome.

¶8 After being turned away by King, Jensen's mother met with another law firm, Siegfried and Jensen, to discuss potential representation. Three days later, Siegfried and Jensen also declined to represent Jensen. After her meetings with King and Siegfried and Jensen, Jensen's mother concluded that her son's injury "was not due to medical mistake or negligence." She instructed Siegfried and Jensen to destroy the medical records.

¶9 Jensen's father met Charles Thronson, a medical malpractice attorney, at a social event in March 2014. Jensen's father and Thronson discussed Jensen's injury and Thronson offered "to look at [Jensen's] case but needed to get medical records as soon as possible to avoid the running of the four-year statute [of repose]." Thronson shared Jensen's medical records with an expert who concluded that the cardiac arrest

was caused by several breaches of the standard of care. Thronson called Jensen to inform him of the reported breaches and offered to represent him.

¶10 Jensen retained Thronson. And on March 21, 2014, Jensen served the defendants with notice of his intent to commence an action pursuant to Utah Code section 78B-3-412(1)(a). Jensen received a certificate of compliance from the Division of Occupational and Professional Licensing (DOPL), as was required at the time under section 78B-3-412(1)(b),² and he filed suit on February 2, 2015.

¶11 In the trial court, LDS Hospital moved for summary judgment, arguing that the four-year statute of repose had expired before Jensen filed his complaint. Jensen responded that both the statute of repose and the two-year statute of limitations should have been tolled during the period of prelitigation review. The trial court agreed and denied the motion.

¶12 LDS Hospital then moved for a bifurcated trial to first determine only whether Jensen's lawsuit was barred by the applicable two-year statute of limitations. The trial court granted the motion.

¶13 At trial, the parties advocated for different jury instructions on the meaning of a plaintiff's "discovery of legal injury," which triggers the running of the statute of limitations. Ultimately, the trial court instructed the jury that

[d]iscovery of a "legal injury" in this context occurs when a patient knows, or through reasonable diligence should know, each of the following: (1) that he sustained an injury; (2) the cause of the injury; and (3) that the injury may have been caused by a negligent act of a medical provider.

¶14 After a three-day trial, the jury found that Jensen discovered or should have discovered his legal injury more than two years before he commenced the action. Thus, the action was barred by the statute of limitations, and the trial court entered judgment against Jensen.

¶15 Jensen timely appealed. He challenges the correctness of the trial court's jury instruction on "discovery of legal injury."

STANDARD OF REVIEW

¶16 We review " ‘[a] trial court's ruling concerning a jury instruction ... for correctness,’ without deference to its interpretation of the law." Arnold v. Grigsby (Arnold V ), 2018 UT 14, ¶ 11, 417 P.3d 606 (citation omitted). "A new trial will not be granted unless any error of the trial court was prejudicial, meaning that it misadvised or misled the jury on the law." Id. (citation omitted).

ANALYSIS

¶17 Jensen argues that during the bifurcated trial, the trial court erred in its instruction defining a plaintiff's "discovery of legal injury." In a medical malpractice action, this discovery commences the running of the statute of limitations.

¶18 Under the Utah Health Care Malpractice Act (Malpractice Act), a malpractice action must be "commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury." UTAH CODE § 78B-3-404(1). In Foil v. Ballinger , we interpreted the word "injury" to encompass both "discovery of injury and the negligence which resulted in the injury." 601 P.2d 144, 148 (Utah 1979). We referred to this as a plaintiff's "legal injury," and we held that "the statute begins to run when an injured person knows or should know that he has suffered a legal injury ." Id. at 147 (emphasis added).

¶19 Jensen argues that the trial court's instruction was erroneous for two reasons. First, with regard to the patient's discovery of negligence, Jensen argues that it was erroneous to instruct the jury that a patient's discovery occurs when the patient knows "that the injury may have been caused by a negligent act of a medical provider," rather than "that the injury was caused by a negligent act" of a medical provider. (Emphases added.)

¶20 Second, he argues that the trial court erroneously instructed the jury that discovery of a legal injury occurs when a patient "knows , or through reasonable diligence should know " each of the elements of his legal injury, rather than "when a patient discovers , or through reasonable diligence should discover " each element.³ (Emphases added.)

"May Have Been Caused" Versus "Was Caused"

¶21 Jensen's first argument pertains to the third element of the disputed instruction. He argues it was error to instruct the jury that he had discovered the negligence element of his legal injury when he knew "that the injury may have been caused by a negligent act of a medical provider," rather than when he knew that the injury "was caused " by a negligent act of a medical provider. (Emphases added.) Fundamentally, this argument relates to how certain Jensen must have been that negligence caused his injury before he is considered to have "discovered" that component of his "legal injury." Jensen argues that a plaintiff's knowledge that an injury "may have been caused" by negligence is synonymous with a mere suspicion of negligence, which we have said is legally insufficient. See Arnold v. Grigsby (Arnold IV ), 2012 UT 61, ¶ 17, 289 P.3d 449. Conversely, LDS Hospital argues that this verbiage is an accurate reflection of our case law. And it contends this is so even if the language is substantively equivalent to a suspicion of negligence.

¶22 As Jensen correctly observes, we have used both formulations in our case law. In Foil , we held that legal injury "means discovery of injury and the negligence which resulted in the injury." 601 P.2d at 148 (emphasis added). We have used similar language repeatedly. See, e.g., Arnold IV , 2012 UT 61, ¶ 15, 289 P.3d 449 ("[A] patient has discovered her injury only when she has discovered her ‘legal injury—that is, both the fact of injury and that it resulted from negligence.’ " (emphasis added) (citation omitted)); Collins v. Wilson , 1999 UT 56, ¶ 19, 984 P.2d 960 ("[T]he two-year statute of limitations period commences to run only when the injured person knew or should have known of an injury and that the injury was caused by a negligent act." (emphasis added)).

¶23 But we have also used more equivocal language, sometimes in the same case. See, e.g. , Arnold IV , 2012 UT 61, ¶ 18, 289 P.3d 449 ("All that is necessary is that the plaintiff be aware of...