Roth v. Joseph
2010 UT App 332
| Utah Ct. App. | 2010Background
- Roth sued Dr. Joseph and St. Mark's Hospital for medical malpractice in Utah. Roth learned on Jan. 5, 2005, from his records that the tattooing identified the wrong colon site. May 24, 2004, Voorhees performed colon resection but could not locate tattoos; he resected the wrong portion. October 13, 2004, Joseph disclosed the misidentification; Roth obtained records and sought clarification. Roth’s notice of intent against Joseph was filed May 9, 2007, over two years after discovery. Hospital’s answer was filed May 6, 2008; a default certificate was entered and later set aside; summary judgment granted for Joseph and Hospital.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the default certificate was properly set aside | Roth: default was willful; no good cause. | Hospital: late filing due to clerical error; good cause. | No abuse of discretion; default set aside. |
| Whether Roth’s claim was time-barred by statute of limitations | Roth discovered injury by Jan. 5, 2005. | Limitations began by Jan. 5, 2005. | Time-barred; claim not timely filed. |
| Whether fraudulent concealment tolled the statute | Joseph concealed facts to prevent discovery. | Concealment not proven; discovery occurred by Jan. 5, 2005. | Fraudulent concealment did not save the claim. |
Key Cases Cited
- Daniels v. Gamma W. Brachytherapy, LLC, 221 P.3d 256 (Utah 2009) (discovery of injury and potential negligence triggers statute)
- Deschamps v. Pulley, 784 P.2d 471 (Utah 1989) (discovery rule for medical malpractice suits)
- Foil v. Ballinger, 601 P.2d 144 (Utah 1979) (definition of legal injury in discovery context)
- Lund v. Brown, 11 P.3d 277 (Utah 2000) (avoidance of default judgment when merited by equity)
- Davis v. Goldsworthy, 233 P.3d 496 (Utah Ct. App. 2010) (standard for setting aside default certificates)