Wilson v. Ihc Hosps., Inc.

• Decision Date: 20 July 2012
• Docket Number: No. 20090354.,20090354.
• Citation: 289 P.3d 369,2012 UT 43,713 Utah Adv. Rep. 5
• Parties: Jerome WILSON and Leilani Wilson, as Guardians ad Litem for Jared Tanner Wilson, their minor child, Plaintiffs, Appellants, and Cross–Appellees, v. IHC HOSPITALS, INC., dba Utah Valley Regional Medical Center, C. Joseph Glenn, M.D., Steven S. MacArthur, M.D., David H. Broadbent, M.D., Defendants, Appellees, and Cross–Appellants.
• Court: Utah Supreme Court

289 P.3d 369

713 Utah Adv. Rep. 5

2012 UT 43

Jerome WILSON and Leilani Wilson, as Guardians ad Litem for Jared Tanner Wilson, their minor child, Plaintiffs, Appellants, and Cross–Appellees,

v.IHC HOSPITALS, INC., dba Utah Valley Regional Medical Center, C. Joseph Glenn, M.D., Steven S. MacArthur, M.D., David H. Broadbent, M.D., Defendants, Appellees, and Cross–Appellants.

No. 20090354.

Supreme Court of Utah.

July 20, 2012.

Roger P. Christensen, Karra J. Porter, Scott T. Evans, Joseph W. Steele, Salt Lake City, for appellants.

Charles W. Dalhquist II, Merrill F. Nelson, Matthew C. Ballard, Joann E. Bott, Steven C. Bednar, Sammi V. Anderson, Salt Lake City, for appellees.

Justice PARRISH, opinion of the Court:

INTRODUCTION

¶ 1 This case involves a medical malpractice lawsuit brought by Jerome Wilson and Leilani Wilson on behalf of their son, Jared. The Wilsons allege that employees of IHC Hospitals, Inc. (IHC) breached their duty of care during Ms. Wilson's labor and delivery of Jared. The Wilsons further claim that IHC's negligence caused Jared to suffer severe brain damage. The Wilsons tried their claims to a jury in 2008. The jury found that IHC did not act negligently.

[1] ¶ 2 The Wilsons appealed based on legal errors committed during the trial and IHC cross-appealed. Of the issues raised on appeal, we find IHC's violation of the collateral source rule to be dispositive. To ensure enforcement of this well-established common-law rule, the Wilsons sought, and received, an in limine order excluding collateral source evidence at trial. But during trial, IHC persistently and deliberately violated the trial court's order. IHC's counsel made numerous, explicit references to collateral source evidence. He also referenced collateral source evidence by repeatedly asking witnesses about the “out-of-pocket expenses” the Wilsons had incurred in caring for Jared. IHC's trial tactics violated the in limine order, misled the trial court and substantially prejudiced the jury. We hold that the collateral source rule precludes both explicit reference and methodical allusion to collateral source benefits. Because IHC repeatedly disregarded the in limine order and violated the collateral source rule, we vacate the jury's verdict and remand this case to the trial court.

¶ 3 To assist the trial court on remand, we address several additional issues raised by the parties. First, we clarify the circumstances under which opposing counsel may meet with a patient's treating physician. In cases where a treating physician is not an employee of a defendant, the physician must notify the patient prior to meeting ex parte with opposing counsel. However, where the treating physician is employed by a defendant and the defendant is alleged to be vicariously liable for the physician's conduct, it is permissible for defense counsel to meet with defendant's employee without notifying the plaintiff. Second, we affirm the trial court's decision to exclude IHCs nurse training modules due to a lack of relevance. Finally, we reverse the trial court's decision to admit IHCs neonatal morbidity and mortality statistics because we find these statistics to be protected by the care review privilege.

BACKGROUND ^FN1

I. JARED WILSON'S BIRTH

¶ 4 Ms. Wilson became pregnant with her third child, Jared, in 1994. Because Ms. Wilson had experienced complications with her previous pregnancies, she selected a high-risk specialist, Dr. Joseph Glenn, as her doctor. On April 11, 1995, Ms. Wilson's water broke and Mr. Wilson drove her to IHC's Utah Valley Regional Medical Center (the Hospital) where she was admitted for observation. Because Jared was only twenty-five weeks in gestational age, Dr. Glenn recommended that Jared be delivered by cesarean section upon any signs of infection, labor, or fetal distress.

¶ 5 On April 19, 1995, Dr. Glenn went on vacation. He arranged for Dr. David Broadbent and Dr. Steven MacArthur to care for Ms. Wilson in his absence.

¶ 6 On April 20th, shortly after 8:15 a.m., the on-call nurse paged Dr. MacArthur to inform him that Ms. Wilson was completely dilated. When Dr. MacArthur arrived, he determined that vaginal delivery was imminent. Jared was delivered at 9:33 a.m.

¶ 7 Approximately ten days after Jared's birth, Dr. Ronald Stoddard ordered an ultrasound of Jared's brain. The reviewing radiologist identified a hemorrhage in Jared's right cerebral hemisphere, marked dilation of his lateral ventricles, and bleeding in his periventricular soft tissues.

II. THE WILSONS' MEDICAL MALPRACTICE LAWSUIT AGAINST IHC

¶ 8 Approximately six years after Jared's birth, the Wilsons filed a complaint against IHC on Jared's behalf. The complaint alleges that, because IHC “fail [ed] to deliver Jared by cesarean section on a timely basis, he suffered [brain] hemorrhages, resulting in permanent and severe brain damage which has produced the many disabilities from which he now suffers.”

¶ 9 The parties dispute the cause of Jared's brain hemorrhage. The Wilsons contend that the hemorrhage resulted from inadequate oxygenation of Jared's brain during vaginal delivery. They reason that Jared's brain would have remained properly oxygenated had he been delivered by cesarean section. IHC disputes the Wilsons' claim and argues that the hemorrhage occurred after Jared's birth, for reasons unrelated to vaginal delivery.

¶ 10 After lengthy discovery, this case proceeded to trial in 2008. Following a nineteen-day trial, the jury returned a verdict finding that IHC had not been negligent. The following events that occurred prior to and during trial are relevant to this appeal: (A) IHC circumvented the trial court's in limine order excluding collateral source evidence, (B) IHC met ex parte with Jared's treating physicians, (C) the trial court excluded Dr. Fred Hyde's testimony, (D) the trial court excluded IHC's nurse training modules, and (E) the trial court determined that IHC's neonatal morbidity and mortality statistics did not qualify for the care review privilege. We discuss each of these below.

A. IHC's References to Collateral Source Evidence

¶ 11 Prior to trial, the Wilsons filed a motion in limine, arguing that evidence of collateral source benefits is prejudicial and requesting that the court exclude evidence of the Wilsons' insurance. The trial court granted the Wilsons' motion.

¶ 12 At trial, IHC repeatedly violated the in limine order by questioning witnesses about the collateral source benefits received by the Wilsons. Specifically, IHC questioned witnesses regarding collateral source benefits received from the Utah Division of Service for People with Disabilities (DSPD), Medicaid, and other community, state, and federal assistance programs. In total, IHC made four explicit references to these government benefit programs. For instance, IHC asked Laura Fox, the Wilsons' life care planner, if she was “aware that the [Wilsons] are already getting respite care .... [f]rom the [S]tate of Utah?” Ms. Fox replied “[t]he parents are getting an annual stipend of money from DSPD, that they can use for respite care.”

¶ 13 IHC also violated the in limine order by repeatedly referencing the fact that the Wilsons had not incurred any out-of-pocket costs in providing care for Jared. In total, IHC made ten references to the absence of any out-of-pocket expenses. These questions commenced during cross-examination of Jerome Wilson, Jared's father, who was the Wilsons' first witness. IHC asked Mr. Wilson five times about the out-of-pocket expenses he had incurred in caring for Jared. For example, IHC asked Mr. Wilson the following series of questions:

Q. (by IHC'S COUNSEL) Mr. Wilson isn't it true that in your deposition, in 2003, that you testified that your expenses were minimal?

A. (by JEROME WILSON) Yes.

Q. Okay. And when you were asked if they were around $100, you said, possibly a little more but not much?

A. Yes.

Q. All right. Thank you. And that was seven years into Jared's life.

A. Yes.

¶ 14 On the next day of trial, IHC asked Ms. Fox about out-of-pocket expenses four times. For example, while questioning her about a possible gastrostomy for Jared, IHC asked, “do you know how much the parents will have to pay out-of-pocket for that procedure?” Ms. Fox responded “I do not put out-of-pocket costs in the life care plan.” Several days later, IHC also questioned Dr. Paul Randle, the Wilsons' economist, about out-of-pocket expenses. IHC's most blatant reference to out-of-pocket expenses occurred during its closing argument, when IHC told the jury “[Jared is] getting the hospital and medical care he needs ... [a]nd you have also heard that it's not costing the parents. They're not claiming one cent of out-of-pocket expenses.”

¶ 15 Throughout trial, the Wilsons maintained that IHC's references violated the trial court's in limine order and they employed several tools in an attempt to mitigate the resulting prejudice. First, the Wilsons objected to IHC's questions. For instance, when IHC asked Mr. Wilson what out-of-pocket expenses his family incurred for Jared's wheelchair, the Wilsons' counsel stated “I'm going to object to this as a direct violation of the Court's order.” The Wilsons similarly objected to IHC's references to government benefit programs and out-of-pocket expenses seven more times during the trial. Second, in an effort to stop IHC's repeated references to an absence of out-of-pocket expenses, the Wilsons stipulated that they were not claiming any out-of-pocket expenses. The trial court acknowledged the stipulation. Nevertheless, IHC continued to reference the absence of any out-of-pocket expenses and the availability of government benefit programs during the trial. And the Wilsons continued to object to these references, stating “[y]our Honor, it's irrelevant.... It's been stipulated to.” Finally, the Wilsons moved for a mistrial. One of the grounds specified in support of the Wilsons' motion was that “[t]he collateral source rule, which the Court rule[d on] in response to our motion...