366 P.3d 852
Utah Ct. App.2016Background
- Patricia Belnap underwent heart valve replacement at Ogden Regional Medical Center; Dr. Joseph Graham performed surgery and was her post-op physician.
- Patricia was discharged January 11, 2008; she reported nosebleeds and mouth sores to nursing staff before discharge, but nurses did not notify Graham.
- Patricia returned and was readmitted early January 12 with dangerously low platelets; she died January 13.
- The Belnap family sued for wrongful death and alleged Graham breached the standard of care by (a) failing to make progress notes on Jan. 8, 9, and 11, and (b) failing to examine Patricia on Jan. 11 before discharge.
- Plaintiffs’ expert Paul Brown opined Graham violated the standard of care by not examining Patricia on Jan. 11 and that proper treatment likely would have prevented death; Brown relied on (i) statements Patricia made to her husband and daughter that no doctor had seen her that day and (ii) the absence of a Jan. 11 progress note.
- The district court granted Graham summary judgment, concluding Patricia’s statements and the absent note were inadmissible hearsay and that Brown’s opinion lacked adequate foundation; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Patricia's out-of-court statements under present sense impression (Utah R. Evid. 803(1)) | Statements contemporaneous with discharge describe the event and thus fit 803(1) | Statements were hours after the alleged exam timeframe and not strictly contemporaneous | Not admissible under 803(1); timing too remote to qualify |
| Admissibility of Patricia's statements under then-existing condition (803(3)) and medical treatment exceptions (803(4)) | Statements reflect Patricia's then-existing condition/history and were pertinent to medical diagnosis/treatment | Statements are memory/belief about whether she was seen (excluded by 803(3)) and were not shown to be made for medical diagnosis/treatment (803(4)) | Not admissible under 803(3) or 803(4); either barred as memory/belief or not made for treatment purposes |
| Admissibility of absence of a Jan. 11 progress note under business-records/absence rules (803(6)/(7)) | Absence of a regularly kept progress note proves the exam did not occur | Plaintiffs failed to lay foundation proving ORMC's actual recordkeeping practices | Not admissible—plaintiffs failed to establish the required foundational proof that notes were regularly made/maintained |
| Whether expert (Brown) could base opinion on the inadmissible hearsay (Utah R. Evid. 703) | Rule 703 permits experts to rely on otherwise inadmissible facts when experts reasonably rely on them | Brown impermissibly used hearsay as the basis for critical factual conclusions without showing it is the sort of reliable material experts customarily rely upon; foundation lacking for absent-note inference | Court upheld exclusion: Brown could not rely on the family statements as a conduit for hearsay; his absent-note inference lacked adequate foundation and was excluded |
Key Cases Cited
- Kennecott Corp. v. Utah State Tax Comm'n, 814 P.2d 1099 (Utah 1991) (subject-matter jurisdiction may be raised at any time; appellate jurisdiction analysis)
- Central Utah Water Conservancy Dist. v. Upper E. Union Irrigation Co., 321 P.3d 1113 (Utah 2013) (standards for appellate review of certification and jurisdictional matters)
- Scott v. HK Contractors, 196 P.3d 635 (Utah Ct. App. 2008) (present-sense-impression requires contemporaneous statement)
- State v. Smith, 909 P.2d 236 (Utah 1995) (present-sense-impression requires strict contemporaneity)
- Edwards v. Didericksen, 597 P.2d 1328 (Utah 1979) (limits on using expert testimony as a conduit for inadmissible hearsay)
- State v. Schreuder, 726 P.2d 1215 (Utah 1986) (experts cannot be conduits for inadmissible out-of-court statements)