472 P.3d 935
Utah2020Background
- March–April 2010: Jensen underwent abdominal surgery at LDS Hospital, developed complications, suffered cardiac arrest on April 1, 2010 (heart stopped ~15–17 minutes), and incurred anoxic brain injury.
- April 26, 2010: Jensen executed a power of attorney authorizing his mother to act; she pursued counsel. Two firms (King; Siegfried & Jensen) investigated and declined representation; Jensen’s mother concluded the injury was not due to negligence and instructed destruction of records.
- March 2014: Jensen retained attorney Thronson after an expert review suggested breaches of care; DOPL pre-suit notice served March 21, 2014; complaint filed February 2, 2015.
- Procedural history: LDS moved for summary judgment asserting the four-year repose barred the suit; trial court denied on tolling grounds, then granted bifurcation to try only whether the two-year statute of limitations had run.
- At the limitations trial, the court instructed the jury that discovery of a "legal injury" occurs when the patient knows (or should know) (1) he sustained an injury, (2) the cause of the injury, and (3) that the injury may have been caused by negligent medical care; the jury found the claim time-barred and the court entered judgment. Jensen appealed, challenging the phrasing "may have been caused" and the use of "knows" instead of "discovers."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether instructing that a plaintiff discovers negligence when he knows the injury "may have been caused" by negligence lowered the required certainty (equates to mere suspicion). | Jensen: instruction should require that the injury "was caused" by negligence; "may have been" permits only a suspicion, which is legally insufficient. | LDS: "may have been" mirrors Utah precedent and the objective standard (facts that would lead an ordinary person to conclude negligence may exist); acceptable phrasing. | Court: Affirmed. Instructions taken as a whole correctly stated law; "may have been" is consistent with caselaw and the objective "ordinary person" standard (suspicion alone, without facts, is insufficient). |
| Whether using "knows" (or should know) instead of statutory "discovers" misstates the law. | Jensen: the statute uses "discovers" and that term more precisely captures the temporal discovery inquiry. | LDS: the terms are used interchangeably in precedent; no legal difference or prejudice. | Court: Affirmed. "Knows" and "discovers" have been used interchangeably in Utah caselaw; instruction was not legally erroneous. |
Key Cases Cited
- Foil v. Ballinger, 601 P.2d 144 (Utah 1979) (defines "legal injury" as discovery of injury and the negligence causing it)
- Arnold v. Grigsby, 289 P.3d 449 (Utah 2012) (statute begins when facts would lead an ordinary person to conclude negligence may exist; suspicion insufficient)
- Arnold v. Grigsby, 417 P.3d 606 (Utah 2018) (review standard for jury instructions; consider instructions as a whole)
- Daniels v. Gamma W. Brachytherapy, LLC, 221 P.3d 256 (Utah 2009) (limitations start when plaintiff discovers treatment might have been negligent)
- Collins v. Wilson, 984 P.2d 960 (Utah 1999) (discovery requires awareness of injury and that it was caused by negligence)
- Brower v. Brown, 744 P.2d 1337 (Utah 1987) (discovery defined as knowledge of injury and negligence that caused it)