Jensen v. Intermountain Healthcare, Inc.

• Decision Date: 26 June 2018
• Docket Number: No. 20160424,20160424
• Citation: 424 P.3d 885
• Parties: Erik JENSEN, Appellee, v. INTERMOUNTAIN HEALTHCARE, INC., IHC Health Services, Inc., dba LDS Hospital, and IHC Health Services, Inc., dba Intermountain Medical Group, Appellants.
• Court: Utah Supreme Court

424 P.3d 885

Erik JENSEN, Appellee,

v.INTERMOUNTAIN HEALTHCARE, INC., IHC Health Services, Inc., dba LDS Hospital, and IHC Health Services, Inc., dba Intermountain Medical Group, Appellants.

No. 20160424

Supreme Court of Utah.

Filed June 26, 2018

Charles H. Thronson, Nicholas Bernard, Salt Lake City, for appellee

Troy L. Booher, Beth E. Kennedy, Alexandra Mareschal, Salt Lake City, for appellants¹

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

Due to her retirement, Justice Durham did not participate herein; Court of Appeals Judge Kate A. Toomey sat.

Justice Petersen became a member of the Court on November 17, 2017, after oral argument in this matter and accordingly did not participate.

On Appeal of Interlocutory Order

Justice Pearce, opinion of the Court:

INTRODUCTION

¶ 1 On interlocutory appeal, we are asked to decide whether a request for prelitigation review—a step the Utah Healthcare Malpractice Act (UHMA) mandates a plaintiff take before filing a medical malpractice suit—tolls one of the limitation periods for filing that suit. The district court decided that it did. We agree that it does and affirm.

BACKGROUND

¶ 2 The only facts relevant to this appeal are those that speak to the chronology. Erik Jensen received surgical treatment for abdominal pain and cramping on March 26, 2010. On April 1, 2010, Jensen suffered cardiac arrest

. Jensen claims that medical staff failed to properly resuscitate him and provided negligent post-surgical care.

¶ 3 On March 21, 2014, Jensen filed a notice of intent to sue and a request for prelitigation review. Jensen received a certificate of compliance on December 26, 2014,² and filed suit on February 2, 2015.

¶ 4 Intermountain Healthcare, Inc., IHC Health Services, Inc. dba LDS Hospital, and IHC Health Services, Inc. dba Intermountain Medical Group (collectively "IHC") moved for summary judgment arguing that UHMA’s four-year limitation period for medical malpractice actions barred Jensen’s suit. The district court concluded that Jensen’s request for prelitigation proceedings tolled the time to file during the period he spent waiting for the prelitigation review to conclude. IHC appeals.

ISSUE AND STANDARD OF REVIEW

¶ 5 The single question before us asks whether the district court erred when it denied IHC’s summary judgment motion. This requires us to examine whether filing a request for prelitigation review tolls the four-year period for filing suit. This presents a statutory construction question that we review for correctness. See Bishop v. GenTec Inc. , 2002 UT 36, ¶ 8, 48 P.3d 218.

ANALYSIS

¶ 6 To understand better the question this case presents, it is helpful to appreciate UHMA and the hurdles it requires a prospective plaintiff to clear before filing an action.

¶ 7 First, UHMA requires a plaintiff to file a "notice of intent to commence an action." UTAH CODE § 78B-3-412(1)(a). This notice must be sent to the prospective defendant and must include "(a) a general statement of the nature of the claim; (b) the persons involved; (c) the date, time, and place of the occurrence; (d) the circumstances surrounding the claim; (e) specific allegations of misconduct on the part of the prospective defendant; and (f) the nature of the alleged injuries and other damages sustained." Id. § 78B-3-412(1)(a), (2), (3).

¶ 8 Second, a plaintiff must present the claim to a prelitigation panel. Id. § 78B-3-416(2)(a). UHMA requires that the plaintiff file the request for prelitigation panel review within sixty days of filing the notice of intent to commence action. Id. The prelitigation panel proceedings are, in the statute’s words, "informal [and] nonbinding" but also "compulsory as a condition precedent to commencing litigation." Id. § 78B-3-416(1)(c) (emphasis added). The division has 180 days after the request is filed to "complete a prelitigation hearing," or longer if all parties agree. Id. § 78B-3-416(3)(b). After it completes its review, the hearing panel issues an opinion and a certificate acknowledging that the plaintiff has complied with UHMA’s prelitigation requirements. Id. § 78B-3-418(1)(a). After receipt of the certificate, a plaintiff can properly file the lawsuit.

¶ 9 UHMA provides multiple limitations on when a plaintiff can file suit. Utah Code section 78B-3-404 reads, including the title:

Statute of limitations—Exceptions—Application

(1) A malpractice action against a health care provider shall be 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.³

During the prelitigation review detailed above, UHMA "tolls the applicable statute of limitations until the later of: (i) 60 days following the division’s issuance of ... a certificate of compliance ... or (ii) the expiration of the time for holding a hearing ...." Id. § 78B-3-416(3)(a) (emphasis added).

¶ 10 Tolling of the four-year period matters in this case because Jensen’s four years to file expired while he was waiting for his certificate from the prelitigation review panel.⁴ The district court concluded that Jensen’s request for prelitigation review tolled UHMA’s four-year limitation on filing a malpractice action while the panel reviewed his case. The district court concluded: (1) that IHC’s argument is not supported by the statutory language; (2) that our prior decisions, albeit in different contexts, suggested that both provisions should be tolled; and (3) that IHC’s interpretation would not square with the policies underlying the statute.

¶ 11 We can take a swifter path through the statute than the district court did. To decide whether the district court correctly concluded that Jensen’s suit was timely, we must answer two questions: (1) is the four-year period a statute of limitations or a statute of repose; and (2) if it is a statute of repose, did the Legislature intend that period to be an "applicable statute of limitations" as UHMA uses that term.

I. The Four-Year Period Is a Statute of Repose

¶ 12 As noted above, the Legislature provided that "[t]he filing of a request for prelitigation panel review under this section tolls the applicable statute of limitations until the later of: (i) 60 days following the division’s issuance of ... a certificate of compliance ... or (ii) the expiration of the time for holding a hearing ...." UTAH CODE § 78B-3-416(3)(a) (emphasis added).

¶ 13 That raises the question of what the Legislature intended the reference to the "applicable statute of limitations" to mean. And, more specifically, does "applicable statute of limitations," UTAH CODE § 78B-3-416(3)(a), include the period "not to exceed four years after the date of the alleged act, omission, neglect, or occurrence," UTAH CODE § 78B-3-404(1).

¶ 14 For obvious reasons, the parties disagree about how to label section 78B-3-404 ’s limitation periods. If the latter half of that section describes a statute of limitations, it falls squarely within section 78B-3-416 ’s reference to "applicable statute of limitations." If the four-year period is a statute of repose, we are presented with a trickier statutory interpretation question.

¶ 15 We are presented with a trickier statutory interpretation question. Although the district court pointedly did not decide whether the latter half of section 78B-3-404(1) ’s limitation is better described as a statute of limitations or a statute of repose, we have repeatedly said that the limitation functions as a statute of repose. See Arnold v. Grigsby , 2012 UT 61, ¶ 13, 289 P.3d 449 ("The Utah Health Care Malpractice Act provides ... a four-year statute of repose for the filing of medical malpractice actions."); Lee v. Gaufin , 867 P.2d 572, 574 (Utah 1993) (referring to the same four-year period in UHMA as a "statute of repose"); Sorensen v. Larsen , 740 P.2d 1336, 1336 (Utah 1987) (same). Jensen urges us to reconsider what we said in these cases because, he claims, we have not had any reason "to consider how a ‘statute of repose’ would operate in conjunction with other provisions of [UHMA], as compared with a statute of limitations." But Jensen does nothing more than invite us to reconsider those conclusions; that is, he provides us with no argument that the language in question constitutes a statute of limitations.

¶ 16 In Berry ex rel. Berry v. Beech Aircraft Corp. , we limned the distinction between statutes of limitations and those of repose:

A statute of limitations requires a lawsuit to be filed within a specified period of time after a legal right has been violated or the remedy for the wrong committed is deemed waived. A statute of repose bars all actions after a specified period of time has run from the occurrence of some event other than the occurrence of an injury that gives rise to a cause of action.

717 P.2d 670, 672 (Utah 1985).

¶ 17 Berry involved a fatal plane crash. Plaintiffs alleged that the plane suffered from a manufacturing defect. Id. at 671–72. The case concerned a statutory limitation on the commencement of an action that barred "all legal actions for death, personal injury, or damage to property caused by a defective product, if the action is filed more than six years after the date of first sale for ‘use or consumption,’ or ten years after the date of manufacture." Id. at 672–73 (citation omitted). We concluded that this operated as a statute of repose that began to run from "the date of first sale, or the date of manufacture, of a product alleged to be defective." Id. at 672.

¶ 18 UHMA operates in a similar way. Take, for example, a medical malpractice action based on a surgical error that does not manifest itself until years later. This resembles the manufacturing defect at issue in Berry. In both examples, the action that will eventually result in injury has occurred; it...