Robertson v. IHC Health Servs.
Decision Date | 06 May 2022 |
Docket Number | 2:19-cv-00053-JNP-CMR |
Parties | JEFFREY ROBERTSON and WANPHEN ROBERTSON, Plaintiffs, v. IHC HEALTH SERVICES, INC. dba UTAH VALLEY REGIONAL MEDICAL CENTER; CRAIG S. COOK, M.D., P.C.; CRAIG S. COOK, M.D.; SAMER A. SALEH, M.D.; KURT O. BODILY M.D.; THOMAS A. DOCKINSON, M.D.; MATTHEW B. SPERRY, M.D.; UTAH VALLEY SPECIALTY HOSPITAL, INC.; and TALA'AT AL-SHUQAIRAT, M.D., Defendants. |
Court | U.S. District Court — District of Utah |
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
This case comes before the court on two motions for summary judgment. Defendant Utah Valley Specialty Hospital moves for summary judgment against plaintiffs Jeffrey Robertson (“Mr. Robertson”) and Wanphen Robertson (“Ms. Robertson”) (collectively “Plaintiffs” or “the Robertsons”) on the grounds that the two-year statute of limitations set forth in the Utah Health Care Malpractice Act bars the Robertsons' claims. ECF No. 100. Defendants IHC Health Services, Inc. dba Utah Valley Regional Medical Center; Samer A. Saleh, M.D.; Matthew B. Sperry, M.D.; Craig S. Cook, M.D. Craig S. Cook, M.D., P.C.; Kurt O. Bodily, M.D.; Thomas A Dickinson, M.D.; and Tala'at Al-Shuqairat, M.D.[1] also move for summary judgment against the Robertsons on the same grounds. ECF No. 102. For the reasons stated below, the court GRANTS both motions for summary judgment.
On September 4, 2014, Mr. Robertson presented at Utah Valley Regional Medical Center's emergency department with severe abdominal pain. ECF No. 111-1 at 3. A CT scan revealed evidence of acute pancreatitis and cholelithiasis. Id. at 6. The emergency department discharged Mr. Robertson to the ICU where Dr. Kurt Bodily (gastroenterologist) and Dr. Craig Cook (general surgeon) were consulted. Id. at 5. Over the course of the next two months, Dr. Cook performed several surgeries on Mr. Robertson to remove necrotic material and abscesses and to place drains. Id. at 6-7.
On October 30, 2014, Mr. Robertson's providers discharged him to Utah Valley Specialty Hospital. Id. at 7. There, Mr. Robertson received treatment from Dr. Tala'at Al-Shuqairat for about five months. ECF No. 111-2 at 6-10. Dr. Cook and his team also continued to follow up with Mr. Robertson at Utah Valley Specialty Hospital. Id. at 7.
On March 6, 2015, Mr. Robertson was transferred to Salt Lake Regional Medical Center (“SLRMC”) for inpatient rehabilitation. ECF No. 111-3 at 2. Soon after admission to SLRMC, Mr. Robertson's gastronomy tube was accidentally pulled out, prompting a CT scan. Id. at 4. The CT scan demonstrated significant abscesses in Mr. Robertson's abdomen. Id. On March 9, 2015, Mr. Robertson was admitted to the ICU at SLRMC where Dr. Legrand Belnap performed surgery to remove the necrotic portion of the pancreas and drain the abscesses. Id. at 10-11. Mr. Robertson underwent several additional surgeries related to the same issue while at SLRMC. Id. at 11.
In connection with the March 9, 2015 surgery, Mr. and Ms. Robertson met with Dr. Belnap. Dr. Belnap expressed disgust and unhappiness with Mr. Robertson's prior medical care. ECF No. 101-1 at 5; ECF No. 101-2 at 6. Before the surgery, he informed Ms. Robertson that if Mr. Robertson did not undergo surgery, Mr. Robertson would likely die. ECF No. 101-1 at 5; ECF No. 101-2 at 6. After the surgery, Dr. Belnap informed Mr. Robertson that his prior physicians performed the wrong surgery-they should have removed the entire pancreas, not ten percent of the pancreas. ECF No. 101-1 at 6.
Mr. Robertson spoke with a friend, Steven Clarke (“Mr. Clarke”), in 2015 about his medical experience. Mr. Clarke testified that Mr. Robertson “believed that his care wasn't correct.” ECF No. 101-3 at 6. Specifically, Mr. Robertson told Mr. Clarke that “his original doctor had not followed the current standing SOP, the standard operating procedure for dealing with his particular problem that he presented with, and that that had caused complications.” Id at 7. While Mr. Clarke did not assist Mr. Robertson in obtaining legal counsel, Mr. Clarke testified in his deposition that Mr. Robertson “did mention to me initially that he was looking at filing a case.” Id.
At all times relevant here, the Utah Health Care Malpractice Act required plaintiffs to overcome a series of hurdles before filing a malpractice action against a health care provider. See UTAH CODE §§ 78B-3-401 through 426. The purpose of the Act is, in part, “to provide a reasonable time in which actions may be commenced against health care providers while limiting that time to a specific period for which professional liability insurance premiums can be reasonably and accurately calculated.” Id. § 78B-3-402(3).
The Act first requires plaintiffs to give prospective defendants ninety days' notice of intent to commence the action. Id. § 78B-3-412(1)(a). Then, plaintiffs must present their case to a prelitigation panel which determines whether the claims have “merit” or “no merit.” Id. § 78B-3-416(2)(a) and -418(2). If the panel finds “no merit, ” the plaintiff must present an affidavit of merit from both the plaintiff's attorney and a health care provider stating that there is a reasonable and meritorious cause for filing the medical malpractice action. Id. § 78B-3-423(1)-(2). At the time that the Robertsons filed this case, the Utah Health Care Malpractice Act required plaintiffs to obtain a certificate of compliance-which the Division of Occupational and Professional Licensing (“DOPL”) issued after a finding of “merit” or after submission of the proper affidavits-in order to file a malpractice claim.[2] Id. § 78B-3-412(1)(b).
The Act also contains a two-year statute of limitations. Id. § 78B-3-404(1). However, the Act provides for tolling during the prelitigation panel proceedings. Id. § 78B-3-416(3)(a). Specifically, filing a request for prelitigation panel review tolls the statute of limitations until the later of (1) sixty days after the prelitigation panel issues an opinion, (2) sixty days after DOPL issues a certificate of compliance, or (3) 180 days after the filing of the request for prelitigation panel review (or any longer period required to complete the prelitigation hearing, as agreed to by all parties in writing). Id.
The Robertsons engaged in the prelitigation review process as follows. Younker Hyde Macfarlane PLLC (“Younker”), the law firm that initially represented the Robertsons, filed a Notice of Intent to Commence Action on behalf of Mr. Robertson on August 18, 2016. ECF No. 111-4 at 1. On January 18, 2017, DOPL notified counsel for the Robertsons that the panel found the action, dubbed Case No. PR 16-08-014, non-meritorious. ECF No. 111-5 at 1. The notice advised counsel that, should counsel wish to seek a certificate of compliance, it must file affidavits of merit by March 30, 2017. Id. On February 14, 2017, Younker withdrew as counsel. ECF No. 111-6 at 9-10. On February 22, 2017, Younker requested a sixty-day extension to file the required affidavits of merit, which DOPL granted.[3] Id. at 3-4. DOPL set the new due date for affidavits of merit as May 19, 2017. Id. at 1. After receiving no affidavits from Mr. Robertson or counsel, DOPL closed the case on May 31, 2017. ECF No. 111-7 at 4.
Nothing occurred in the case for over a year after DOPL closed the case. On July 17, 2018 Mr. Robertson retained new counsel. One day later, Mr. Robertson's new counsel, Anne Cohen, requested a sixty-day extension to file the affidavits of merit. Id. at 1, 8. DOPL informed Ms. Cohen that the matter had been closed and that she could refile the entire matter if she wished. Id. at 1.
Ms. Cohen then filed a second Notice of Intent to Commence Legal Action for Medical Malpractice on August 8, 2018. ECF No. 111-8. Ms. Cohen attached affidavits of merit from herself as well as Dr. Robert Rick Selby. ECF Nos. 111-9, 111-10. On August 16, 2018, Ms. Cohen requested a prelitigation screening panel. ECF No. 111-11. DOPL dubbed the new case No. PR 18-08-024 and granted Ms. Cohen's request on August 20, 2018. ECF No. 111-12. Between August 22, 2018 and August 29, 2018, various counsel entered appearances on behalf of Defendants. ECF Nos. 111-13 through 111-16. Ms. Cohen subsequently filed an amended Notice of Intent to Commence Legal Action for Medical Malpractice that added Ms. Robertson to the action. ECF No. 111-17. After some back and forth, the parties filed a stipulation waiving the prelitigation hearing panel on November 28, 2018. ECF Nos. 111-18, 111-19. DOPL issued a certificate of compliance in Case No. PR 18-08-024 on December 17, 2018. ECF No. 111-21. The Robertsons filed the present action on January 24, 2019. ECF No. 2.
In sum, the Robertsons filed two actions with DOPL as follows. The initial Notice of Intent was assigned Case No. PR 16-08-014 by DOPL. DOPL did not issue a certificate of compliance in Case No. PR 16-08-014. Rather, DOPL closed the case after the Robertsons failed to file affidavits of merit as required by Utah law. The second Notice of Intent, as well as its amendment, was assigned Case No. PR 18-08-024. DOPL issued a certificate of compliance in Case No. PR 18-08-024.
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(A). THE MOVANT BEARS THE INITIAL BURDEN OF DEMONSTRATING THE ABSENCE OF A GENUINE DISPUTE OF MATERIAL FACT. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has met this burden, the burden then shifts to...
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