Nunez v. Albo

• Decision Date: 18 July 2002
• Docket Number: No. 20010037-CA.,20010037-CA.
• Citation: 53 P.3d 2,2002 UT App 247
• Parties: Silvia NUÑEZ, Plaintiff and Appellant, v. Dominic ALBO, M.D., Defendant and Appellee.
• Court: Utah Court of Appeals

53 P.3d 2

2002 UT App 247

Silvia NUÑEZ, Plaintiff and Appellant, v. Dominic ALBO, M.D., Defendant and Appellee.

No. 20010037-CA.

Court of Appeals of Utah.

July 18, 2002.

Loren M. Lambert, Arrow Legal Solutions, Midvale, and David R. Olsen and Paul M. Simmons, Dewsnup King & Olsen, Salt Lake City, for Appellant.

Brian P. Miller, David G. Williams, and Kenneth L. Reich, Snow Christensen & Martineau, Salt Lake City, for Appellee.

Before Judges DAVIS, GREENWOOD, and ORME.

OPINION

GREENWOOD, Judge:

¶ 1 Silvia Nuñez brought a medical malpractice action as a result of treatment she received for telangiectasia (spider veins) by Dr. Dominic Albo. Dr. Albo moved for summary judgment based on his personal immunity under the Utah Governmental Immunity Act (the Immunity Act). Ms. Nuñez filed a motion to amend her complaint. The trial court granted Dr. Albo's motion for summary judgment and denied Ms. Nuñez's motion to amend. Ms. Nuñez appeals. We affirm the grant of summary judgment, but reverse the denial of Ms. Nuñez's motion to amend.

BACKGROUND

¶ 2 Dr. Albo is a general surgeon, with a special emphasis in varicose vein treatment, and has been employed as a faculty member at the University of Utah's School of Medicine (the University) in the Department of Surgery since July 1968. As a University faculty member, Dr. Albo must maintain a clinical practice as a condition of his employment. The University pays for Dr. Albo's clinic, medical supplies, and medications used in his treatment of patients. All billings and collections for Dr. Albo's medical services are handled by the University. Dr. Albo does not receive direct compensation for his medical practice, but instead receives a salary from the University.

¶ 3 On May 8 and 20, 1998, Dr. Albo treated Ms. Nuñez for spider veins in her legs at his clinic located near the Salt Lake Regional Medical Center (SLRMC) during regular business hours. Ms. Nuñez's treatment consisted of injection sclerotherapy. Prior to treatment, Ms. Nuñez signed both a consent form describing the potential complications associated with injection sclerotherapy and an acknowledgment form stating she understood that Dr. Albo was an employee of the University and subject to the provisions of the Immunity Act. Ms. Nuñez alleged that as a result of the injection sclerotherapy treatment, she suffered complications consisting of brown spots, ulcers, hyper-pigmentation, and severe scarring on her legs. On or about January 6, 1999, Ms. Nuñez sent a notice of claim to Dr. Albo and to the Utah Attorney General pursuant to the Utah Health Care Malpractice Act (the Malpractice Act), Utah Code Ann. §§ 78-14-1 to -16 (1996).

¶ 4 On February 16, 1999, the Director of the University of Utah Hospital and Clinic's Risk Management Department (Risk Management) responded to Ms. Nuñez's notice of claim letter, asking her to refrain from contacting Dr. Albo and to direct future communication to either Lynda P. Faldmo of Risk Management or David G. Williams, Dr. Albo's counsel.

¶ 5 After complying with the prelitigation requirements of the Malpractice Act, Ms. Nuñez filed an action against Dr. Albo, claiming he had breached the applicable standard of care in treating her and failed to obtain her informed consent for treatment. Dr. Albo filed a motion for summary judgment, claiming that he is immune from personal liability under the Immunity Act because he is an employee of the University, and that his care and treatment of Ms. Nuñez were within the course and scope of that employment. Ms. Nuñez filed a motion for leave to amend her complaint to name the University and its medical school as defendants. Ms. Nuñez sought leave to amend in the event the trial court agreed with Dr. Albo that he was not personally liable for her injuries. Until this time, Ms. Nuñez had alleged that Dr. Albo was acting outside the scope of his employment, and therefore, was personally liable.

¶ 6 The trial court granted Dr. Albo's motion for summary judgment, ruling that Dr. Albo's treatment of Ms. Nuñez was performed in his capacity as an employee of the University and within the scope of that employment. The trial court denied Ms. Nuñez's motion to amend, ruling that she had failed to comply with the express provisions of the Immunity Act and that such failure prevented any claims from being asserted against the University. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Ms. Nuñez argues: (1) genuine issues of material fact exist as to whether Dr. Albo was acting within the scope of his employment when he treated her; (2) she gave proper notice of her claim against the University under the Immunity Act; and (3) the trial court exceeded its discretion by denying her motion to amend.

¶ 8 When reviewing whether summary judgment is appropriate, "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." Deschamps v. Pulley, 784 P.2d 471, 472 (Utah Ct.App.1989) (quotation and citations omitted). Thus, we review the evidence in a light most favorable to Ms. Nuñez. See id.

¶ 9 Interpretation of the Immunity Act is a "question of law which we review for correctness, granting no deference to the trial court's determinations." Bellonio v. Salt Lake City Corp., 911 P.2d 1294, 1296 (Utah Ct.App.1996) (citing Brittain v. State, 882 P.2d 666, 668 (Utah Ct.App.1994)).

¶ 10 Whether to grant or deny a motion to amend is "a matter within the broad discretion of the trial court and we [will not] disturb its ruling unless [Ms. Nuñez] establishes an abuse of discretion resulting in prejudice." Chadwick v. Nielsen, 763 P.2d 817, 820 (Utah Ct.App.1988).

ANALYSIS

I. Scope of Employment

¶ 11 Ms. Nuñez argues that the trial court erred in granting Dr. Albo's motion for summary judgment because there are genuine issues of material fact as to whether Dr. Albo was acting within the scope of his employment with the University when he treated her. Generally, this issue presents a question of fact to be determined by a jury. See Birkner v. Salt Lake County, 771 P.2d 1053, 1057 (Utah 1989)

. Therefore, summary judgment is appropriate only if the undisputed facts render the resolution so clear it can be decided as a matter of law. Id.

¶ 12 Utah courts apply a three-part test for determining whether an employee was acting within the scope of his employment. An employee's conduct falls within the scope of his employment if,

First, ... [the] conduct [is] of the general kind the employee is employed to perform.... That means that an employee's acts or conduct must be generally directed toward the accomplishment of objectives within the scope of the employee's duties and authority, or reasonably incidental thereto....

Second, the employee's conduct ... occur[s] within the hours of the employee's work and the ordinary spatial boundaries of the employment....

Third, the employee's conduct [is] motivated, at least in part, by the purpose of serving the employer's interest.

Id. at 1056-57 (citations omitted). We examine each element in light of the evidence that Dr. Albo presented, which Ms. Nuñez did not dispute.

¶ 13 First, Dr. Albo's treatment of Ms. Nuñez was "directed toward the accomplishment of objectives within the scope of [his] duties and authority." Id. at 1057. Dr. Albo has been employed as a faculty member and general surgeon at the medical school in the Department of Surgery since July 1968. He has a special emphasis in treating varicose veins. As a condition of his employment, Dr. Albo is expected to, and does, maintain a clinical practice. Ms. Nuñez went to Dr. Albo's clinic seeking treatment for spider veins in her legs, a treatment of the general kind and nature that Dr. Albo has been employed to perform. Therefore, the first element is established because Dr. Albo's treatment of Ms. Nuñez was of the type he was employed to perform.

¶ 14 Second, Dr. Albo's conduct "occur[red] within the hours of [his] work and the ordinary spatial boundaries of employment." Id. Dr. Albo treated Ms. Nuñez during regular business hours at his clinic paid for by the University. Because Dr. Albo is a faculty member, the University paid the costs of his clinic where Ms. Nuñez received treatment along with the medical supplies and medications used in her treatment. All billings and collections for Dr. Albo's medical services are handled by the University. Although Ms. Nuñez paid cash for the treatment, this payment was forwarded in full to the University. Dr. Albo does not receive direct compensation for his medical practice; instead, Dr. Albo's sole compensation is a salary from the University. Because Dr. Albo's treatment of Ms. Nuñez "occurred within the hours of [his] work and the ordinary spatial boundaries of employment," the second element is established.

¶ 15 Finally, Dr. Albo's treatment of Ms. Nuñez was motivated "by the purpose of serving the [University's] interest." Id. In educating and training students, interns, residents and fellows (students) in medicine and health sciences, the University arranges for students to provide health care services to members of the public in approved medical or other health care clinical training programs at the University and its affiliated clinics. Faculty members are expected to develop and maintain an appropriately mixed patient base to enable the University to adequately teach and train students in all phases of health care science, including patient care and research.

¶ 16 Witnesses for Dr. Albo testified, by affidavit or deposition, that costs associated with a medical school are high and include attracting and retaining qualified faculty, providing research space and equipment, and providing adequate clinical space and experiences for students. Because of the high costs associated with maintaining a medical school, the...