420 P.3d 88
Utah Ct. App.2018Background
- Kylie Lee (patient) was Rh-negative in her 2008 pregnancy with Dr. Kenneth Williams; she did not receive RhoGAM at 26–28 weeks and received one postpartum injection. Tests later showed Rh-sensitization, which RhoGAM cannot reverse and which raises risks for future pregnancies.
- Lee alleged Williams negligently failed to order prenatal RhoGAM; she filed suit on September 27, 2012.
- Defendants moved for summary judgment on statute-of-limitations grounds. The trial court held as a matter of law that Lee knew of possible negligence by March 2009 (after Lee’s Internet research revealed she should have received prenatal RhoGAM), but reserved the question of when she discovered she was injured (Rh-sensitized) for trial.
- The trial was bifurcated: Phase 1—whether Lee discovered her injury (timeliness); Phase 2—merits if timely. The court excluded certain Williams medical records and limited evidence in Phase 1. The jury was instructed that discovery occurs when a person "knows or should know that she might have sustained an injury."
- The jury found Lee knew she might have been injured before the limitations cutoff; the court dismissed the case. On appeal, the court affirmed the summary-judgment narrowing (negligence known by March 2009) but reversed and remanded for a new trial because of erroneous jury instructions, improper exclusion of relevant records, and an improper ex parte contact with a treating nurse.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred on summary judgment finding Lee knew of possible negligence by March 2009 | Lee: discovery of negligence cannot be found unless she also discovered she was injured; summary judgment premature | Defendants: Lee’s March 2009 internet research showed she knew she should have received prenatal RhoGAM and that she did not, so she knew of possible negligence | Affirmed: court correctly held as matter of law Lee knew possible negligence by March 2009; injury discovery (Rh-sensitization) remained a jury issue |
| Correct legal standard for "discovery" in jury instruction/ verdict form | Lee: instruction misstated law by using "might have"—plaintiff must know (or reasonably should know) she sustained an injury, not merely that she might have | Defendants: discovery can be constructive from information a reasonable person would have found | Reversed (instruction error): inclusion of "might have" was legally incorrect and lowered defendant’s burden; error not harmless |
| Exclusion of Williams’s medical records at Phase 1 | Lee: records were relevant to timing and to Williams’s credibility (whether he told Lee she was sensitized) | Defendants: records were irrelevant or excludable under Rule 403 as confusing/unfair prejudice or wasteful | Reversed (exclusion error): records were relevant and probative; exclusion exceeded discretion and likely affected outcome |
| Ex parte contact between defense counsel and treating nurse | Lee: Sorensen/Wilson prohibit ex parte merit-related communications with plaintiff’s treating provider; trial court erred by denying relief | Defendants: nurse was not a treating provider or contact was limited to general practice (not patient specifics) | Error acknowledged: nurse was a treating provider and the ex parte merit-related contact violated Sorensen; sanction is for trial court to decide on remand; error may be harmless alone but should be addressed on remand |
Key Cases Cited
- DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835 (Utah 1996) (summary-judgment review standard)
- Daniels v. Gamma West Brachytherapy, LLC, 221 P.3d 256 (Utah 2009) (malpractice limitations runs when plaintiff discovers both injury and possible negligent cause)
- Seale v. Gowans, 923 P.2d 1361 (Utah 1996) (discovering negligence before manifestation of injury does not start limitations until injury manifests)
- Roth v. Joseph, 244 P.3d 391 (Utah Ct. App. 2010) (limitations begins upon discovery of possibility of negligence when injury already known)
- Sorensen v. Barbuto, 177 P.3d 614 (Utah 2008) (prohibits ex parte communications between defense counsel and plaintiff’s treating physician)
- Wilson v. IHC Hospitals, Inc., 289 P.3d 369 (Utah 2012) (trial court must consider sanctions and perform fact-finding when improper ex parte contact occurs)
- Belden v. Dalbo, Inc., 752 P.2d 1317 (Utah Ct. App. 1988) (standard for harmless error analysis)