Stewart v. Bova

• Decision Date: 21 April 2011
• Docket Number: No. 20100036–CA.,20100036–CA.
• Citation: 256 P.3d 230,2011 UT App 129,680 Utah Adv. Rep. 18
• Parties: Glenna STEWART, Plaintiff and Appellee,v.Charles BOVA, M.D., and Pioneer Valley Hospital, Defendants and Appellants.
• Court: Utah Court of Appeals

256 P.3d 230

680 Utah Adv. Rep. 18

2011 UT App 129

Glenna STEWART, Plaintiff and Appellee,

v.Charles BOVA, M.D., and Pioneer Valley Hospital, Defendants and Appellants.

No. 20100036–CA.

Court of Appeals of Utah.

April 21, 2011.

Shawn P. Bailey, Logan; and Clark Newhall, Salt Lake City, for Appellee.Kurt M. Frankenburg, Stephen T. Hester, Brian P. Miller, Kenneth L. Reich, and Christopher W. Droubay, Salt Lake City, for Appellants.Before Judges McHUGH, ORME, and VOROS.

OPINION

VOROS, Judge:

¶ 1 The question presented by this appeal is whether an agreement to arbitrate a medical malpractice dispute must, to be enforceable, comply with the specific requirements of the arbitration statute of the Utah Health Care Malpractice Act. See Utah Code Ann. §§ 78B–3–401 to –422 (2008). We hold that it must.

BACKGROUND

¶ 2 On September 16, 2008, Glenna Stewart underwent a lumbar nerve root injection at Pioneer Valley Hospital. The procedure was performed by Dr. Charles Bova. Ms. Stewart was accompanied by her daughter, a registered nurse.

¶ 3 According to Ms. Stewart's declaration, at the hospital she was led to a treatment room and instructed to change into a hospital gown. Ms. Stewart was in “a lot of pain” and was “very anxious.” A nurse came into the room with a “stack of papers” and told Ms. Stewart to sign them. However, Ms. Stewart noticed a different patient's name on the top page of the stack of papers and pointed this fact out to the nurse. The nurse brought a new stack of papers and pointed to specific pages for Ms. Stewart to sign. Ms. Stewart signed them. Ms. Stewart was then moved to another room and placed on a table in preparation for the injection. Just before the injection, Ms. Stewart was presented with another paper to sign. She believes that this may have been an arbitration agreement. According to her declaration, Ms. Stewart was not given an explanation about the contents of any of the papers she signed. In particular, she was not encouraged to ask questions about the arbitration agreement or given a chance to read it before signing. The day after the injection, Ms. Stewart saw Dr. Bova for a follow-up appointment and signed a second arbitration agreement. The two arbitration agreements are identical. ¹ Ms. Stewart declares that she received copies of neither. Her daughter later stated in an affidavit, “If I had known that there was an arbitration agreement in the documents given to my Mother to sign, I would have instructed her not to sign it.”

¶ 4 According to his declaration, Dr. Bova reviewed the Agreement with Ms. Stewart and her daughter prior to the injection. In addition, he answered all of Ms. Stewart's questions regarding the Agreement and confirmed that Ms. Stewart understood the terms of the Agreement. Dr. Bova then observed Ms. Stewart sign the Agreement. Dr. Bova does not, however, contend that Ms. Stewart was verbally encouraged to read the materials or to ask any questions.

¶ 5 Following the injection, Ms. Stewart experienced a loss of sensation and motor function in her leg. She sued Dr. Bova, alleging medical malpractice. Dr. Bova moved to stay the court action and to compel arbitration as required by the Agreement. Ms. Stewart responded that the Agreement is invalid because (1) she was not verbally encouraged to read the materials or ask questions; (2) she was not given a copy of the Agreement; (3) she was not given the written information required by section 78B–3–421(1)(a) of the Utah Health Care Malpractice Act; and (4) the Agreement is unconscionable. The trial court denied Dr. Bova's motion. It ruled that no question of fact existed as to whether Dr. Bova had verbally encouraged plaintiff to read the Agreement and to ask any questions. Consequently, it ruled that the Agreement was not validly executed under section 78B–3–421. The trial court did not address whether the Agreement was otherwise unconscionable. Dr. Bova appeals.²

ISSUE AND STANDARD OF REVIEW

¶ 6 Dr. Bova raises several issues on appeal, but they all resolve into a single question: whether the Agreement is enforceable under section 78B–3–421, the arbitration provision of the Utah Health Care Malpractice Act. “The interpretation of a statute is a question of law that we review for correctness....” Jaques v. Midway Auto Plaza, Inc., 2010 UT 54, ¶ 11, 240 P.3d 769.

ANALYSIS

The Agreement Was Not Validly Executed

¶ 7 Generally speaking, “[i]t is the policy of the law in Utah to interpret contracts in favor of arbitration, in keeping with our policy of encouraging extrajudicial resolution of disputes when the parties have agreed not to litigate.” Central Florida Investments, Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 16, 40 P.3d 599 (internal quotation marks omitted). And while “no public policy requires such agreements to be subjected to a different analysis when they are between physicians and patients,” Sosa v. Paulos, 924 P.2d 357, 359 (Utah 1996), the Utah Legislature has by statute established specific requirements for the valid execution of an arbitration agreement between a patient and a health care provider, see Utah Code Ann. § 78B–3–421 (2008). These requirements include terms that must be contained in the arbitration agreement, information the patient must be provided in writing, and information the patient must be verbally told. Id. At issue here is this last requirement, what the patient must be told:

(1) After May 2, 1999, for a binding arbitration agreement between a patient and a health care provider to be validly executed ...:

(c) the patient shall be verbally encouraged to:

(i) read the written information required by Subsection (1)(a) and the arbitration agreement; and

(ii) ask any questions.

Id. § 78B–3–421(1)(c). The written information required by subsection (1)(a) includes the patient's waiver of the right to have a claim heard by a judge or jury; the patient's responsibility, if any, for the costs of arbitration; the patient's right to decline arbitration and still receive treatment; the automatic renewal of the arbitration agreement; and the patient's right to rescind the arbitration agreement within ten days. See id. § 78B–3–421(1)(a).

¶ 8 Ms. Stewart does not deny that she signed the Agreement. The Agreement provides that she will resolve any claim against Dr. Bova by negotiation, mediation, or arbitration. It also contains a provision reciting that she had the right to ask questions about the arbitration agreement:

I have received a written explanation of the terms of this Agreement. I have had the right to ask questions and have my questions answered. I understand that any Claim I might have must be resolved through the dispute resolution process in this Agreement instead of having them [sic] heard by a judge or jury. I understand the role of the arbitrators and the manner in which they are selected. I understand the responsibility for arbitration related costs. I understand that this Agreement renews each year unless cancelled before the renewal date. I understand that I can decline to enter into the Agreement and still receive health care. I understand that I can rescind this Agreement within 10 days of signing it.

However, Dr. Bova does not contend that Ms. Stewart was verbally encouraged to read the written information required by subsection (1)(a) and the Agreement or to ask any questions.

¶ 9 The trial court ruled that because the uncontested facts demonstrated that the requirements of section 78B–3–421 were not met, the Agreement was not validly executed, and hence, is unenforceable. Dr. Bova challenges this conclusion on several grounds.

A. Compliance with Section 78B–3–421(1)(c)

¶ 10 Dr. Bova contends “that the Agreement complies with the legislatively established requirements to create a presumptively valid and enforceable agreement.” He does not contest that Ms. Stewart was not verbally encouraged to read any materials or to ask any questions. Rather, he argues that “[i]t is simply nonsensical to hold an agreement unenforceable on the basis that only one of many statutory requirements designed to prevent misunderstanding of the terms of an Agreement was not met, when the Plaintiff clearly acknowledges that she understood the terms of the Agreement.” In effect, Dr. Bova argues that where the objectives of the statute have been satisfied, substantial compliance was sufficient.

¶ 11 “To interpret a statute, we always look first to the statute's plain language in an effort to give effect to the legislature's intent, to the degree it can be so discerned.” In re Olympus Constr., L.C., 2009 UT 29, ¶ 10, 215 P.3d 129. In addition, “[w]hen interpreting a statute, we assume, absent a contrary indication, that the legislature used each term advisedly according to its ordinary and usually accepted meaning.” Hutter v. Dig–It, Inc., 2009 UT 69, ¶ 32, 219 P.3d 918. Moreover, “ ‘effect must be given, if possible, to every word, clause and sentence of a statute.... No clause[,] sentence or word shall be construed as superfluous, void or insignificant if the construction can be found which will give force to and preserve all the words of the statute.’ ” State v. Maestas, 2002 UT 123, ¶ 53, 63 P.3d 621 (quoting Norman J. Singer, 2A Sutherland Statutory Construction § 46:06 (4th ed. 1984)).

¶ 12 Here, the language of the statute could not be more clear: “for a binding arbitration agreement between a patient and a health care provider to be validly executed ...:(c) the patient shall be verbally encouraged to: (i) read the [specified] written information ... and the arbitration agreement; (ii) and ask any questions.” Utah Code Ann. § 78B–3–421(1)(c) (2008). Ms. Stewart was not verbally encouraged to read the materials or to ask any questions. Accordingly, under the explicit terms of the statute, the Agreement was not validly executed.

¶ 13 Dr. Bova contends that the acknowledgment signed by Ms. Stewart demonstrates that she understood the Agreement and had the opportunity to ask...