*1 disputes their merits.4 The benefits of incorporate dure that would the notice re- quirements 16, clear-parties set forth in Standard will be afforded "a full opportunity present their evidence and would Advisory refer this issue to our Com- disputed issues so [that mittee on the Rules of Civil Procedure for contentions as may disposed be of on cases] substantial study and recommendation. upon grounds." technical rather than
Second, 151 Chief likely 16 will Justice DURHAM and Standard be Justice easier to than PARRISH concur in administer the "informal con- Associate Chief Justice by many jurisdic- adopted concurring opinion. tacts" standard DURRANT's out, majority points tions. As the examining party's
whether a conduct taken as a whole party's participate
indicates the intent to in a highly
lawsuit would be fact-intensive and require case-by-case application.6
would given
Even complexity the relative of this
standard, it has
support.
considerable
Most
jurisdictions
that have examined the issue
ing party's informal conduct as it relates to a Supreme Court of Utah. lawsuit. 14, May 2010. short,
1 49 In I believe that incorporating Standard 16 into the Rules of Civil Proce- Rehearing July Denied 2010. give dure would rise to substantial benefits. likely These benefits outweigh would
costs associated with administering it-in-
deed, jurisdictions most that have considered question adopted have a more burden-
some pursuit standard in of the same bene-
fits.
50 The Utah Standards of Professional- Civility
ism and were enacted to advance
"the profession hallmarks of learned dedi- public
cated to I service."8 believe that
incorporating Standard 16 into the Utah
Rules of Civil Procedure would contribute
greatly to goal. Accordingly, while
agree with majority, support would an
amendment of the Utah Rules of Civil Proce- 4. See Mason v. Mason, 597 P.2d 1322, 6. Supra, (Utah 1979) ("[Clourts grant- should be liberal in ing against judgments relief taken default to Supra, M\ 27-28. may the end that controversies be tried on the merits."). 8. Utah Standards of Civility Professionalism and pmbl. 5. McKean v. Mountain View Estates, Mem'l (1966). Utah 2d 323, P.2d 129, *2 Hasenyager, Peter Summe- R. W.
James rill, Ogden, plaintiff. Riekhof, Griffin, Eric P. Mark A.
Hugh C. Anderson, Schoonveld, Salt Lake Tawni J. City, for defendant. Simmons, City, for ami- Salt Lake
Paul M. cus curiae.
DURHAM, Justice: Chief
INTRODUCTION case, improp- court In this the district negligent Tina Archuleta's erly dismissed Hospi- credentialing against claim St. Mark's agree with Ms. statutory grounds. We tal on appeal argument on direct Archuleta's 58- Code sections plain language of Utah 13-5(7), 58-138-4, not bar and 26-25-1 does brought pa- negligent providers. We against health care tients dismissal of Ms. court's reverse the district credentialing claim and Archuleta's consistent proceedings further remand for opinion. with this BACKGROUND ANALYSIS 4, 2005, August T2 Dr. R. On Chad Hal- T6 Because the district court dismissed performed laparotomy surgery versen Ms. Archuleta's credentialing claim Hospital. Ms. Archuleta at St. Mark's Less *3 statutory grounds, we examine the three days being discharged than two after from statutes on which the district court based its Hospital, St. Mark's Ms. Archuleta was ad- decision. Since we plain determine that McKay Hospital mitted to Dee complaining language of the statutes does not bar the pain complications of severe and from the negligent claim, credentialing we need not surgery. year, Over the course of the next address Ms. Archuleta's argu- constitutional physicians performed over six additional cor- ments. We also discuss our reasoning for surgeries rective on her. recognizing negligent credentialing cause of action Utah. Subsequently, 13 brought Ms. Archuleta against suit Dr. Halversen and St. Mark's Hospital, among other defendants. In her I. THE PLAIN LANGUAGE OF UTAH Complaint, First Amended she asserted that CODE SECTION 58-135 DOES Hospital St. Mark's "failed to seek consult NOT BAR NEGLIGENT CREDEN- appropriate, inadequately
when trained TIALING CLAIMS provider employees, healthcare negligently T7 plain language credentialed ... gener- [Dr.] Halversen and Utah Code ally 58-18-65 is clear. fell below the Read as a standard of care with whole harmony and in regard provisions with related to Plaintiff Tina and Archuleta" St. Hospital Mark's chapters, it shows moved to dismiss negli- that the did not intend gent hospitals to immunize credentialing portion complaint, brought by asserting patients. recognize Utah does not cause of action for credentialing. T8 When question faced with a T4 The district court determined that statutory interpretation, primary goal "'our 58-13-5(7), 58-13-4, Utah Code sections is to evince the true intent purpose 26-25-1 each independently negli- barred a Legislature" Graham, Duke v. 2007 gent credentialing cause of action. Accord- 31, ¶ 16, UT 158 P.3d (quoting 540 State v. ingly, the court dismissed Ms. Archuleta's Martinez, 80, ¶8, 1276). 2002UT 52 P.3d We ju- claim. We have by looking do so at the "best evidence of risdiction to review the district court's dis- intent, legislative namely, plain pursuant
missal to Utah Code section T8A-3- (internal of the statute itself." quotation Id. (2008), 102(8)(j) to review the district. omitted). part marks As of this "well-worn construction," of statutory canon[ ] we must STANDARDOF REVIEW read plain language of the statute "as a 12(b)(6) T5 purpose (internal "[Thhe of a rule whole." quotation Id. marks omit ted). challenge Under this "whole motion is to sufficiency the formal interpreta statute" relief, of the claim for tion, ¶ not to Maestas, establish the 123, State 54, v. 2002 UT facts or resolve the merits of a Whip 621, case." P.3d provisions we construe harmony "in ple Co., v. Am. Irrigation Fork 910 P.2d provisions with other in the same statute and (Utah 1218, 1996). Accordingly, 'with other statutes under the same and re "12(b)(6) dismissal is a conclusion of chapters'" law" lated Schofield, State v. 8, "Also, "we review 132, for correctness." UT (quoting Lyon 63 P.3d667 ¶ v. Burton, 19, ¶ 17, 616). 'a statutory 2000 UT matter of interpretation 5 P.3d "We is a question of law that we appeal review on for do so because passed 'a] statute is as a correctness." ABCO v. Enters. Utah State parts whole and not or sections and is Comm'n, 36, ¶ 7, Tax 2009 UT 211 P.3d general purpose animated one and intent. (quoting MacFarlane v. Utah State Tax Consequently, part each or section should be Comm'n, 1116) ¶ 9, 2006 UT 134 P.3d construed in every connection with other (alterations omitted). part or section produce so as to a harmonious turpitude, Hart, 45, ¶ 7, competence, moral 2007 UT whole"" Sill abuse. substance Maestas, 2002 UT (quoting P.3d 1099 621). ¶ 54, §Id. 63 P.3d plain language, By purpose its £10 the dissemi- 58-18-5 addresses T 9 Section peer is a review statute. section 58-18-5 The stat- care information. of health
nation Indeed, previously court has concluded facility report compels a health ute plain language of similar statutes of em- as termination events-such certain purpose protect their is to "indicates privileges restrictions ployment or providers who furnish informa cause, professional standards violations of quality of health care ren ethics, findings incompetency-that *4 by any facility." or Rees v. dered individual provider's prac- care affect a licensed health Care, Inc., 808 P.2d Intermountain Health § Code Ann. 58- status. See Utah tice or (Utah 1991). Likewise, under the 13-5(8)(a) (h) (2007). To foster the dis- statute, language of the plain information, legisla- of this semination to immunize three classes of indi intended immunity. The types of grants ture three claims viduals 6(a), found in subsection which type first is brought by providers licensed health care fur- "[alny person organization or provides, 6(a) ie., provides immu doctors. Subsection in accordance with this nishing information, information nity to who furnish the those of the response request 6(b) in to the section those who make deci subsection shields information, response to the and Occupational and Professional sions [Division organize 7 immunizes those who subsection board, voluntarily, im- Licensing] or a or is sponsor or the review of the information. liability respect to informa- mune from guaranteed long limited so This mal- provided good faith and without tion as the acts are done without malice. See 58-18-5(6)(a). § The second Id. ice...." short, In con UCS 58-13-5. 6(b), which type is found subsection templated operates under be statute reads, im- the board are members of "[the a whose credentials are under tween doctor any liability for decisions made mune from suppliers of information and review and response to information or actions taken makers; contemplate not decision does acquired by if those decisions or the board patient hospital.1 a a between and good made in faith and without actions are 58-18-5(6)(b). § The third malice...." Id. OF II. THE PLAIN LANGUAGE 7, the subsec- type exists under subsection 58-18-4 UTAH CODE SECTION at issue in this case. Subsection NOT BAR NEGLIGENT DOES states, CLAIMS CREDENTIALING is a member of a individual who [ain 111 Utah Code section administration, board, committee, hospital providers care grants to health staff, professional department, medical or regarding the sponsor or make decisions is, providers organization of health facilities, quality proper use of and cost entity, any hospital, other health care care, standards, perform or of health ethical § organization conducting or professional Code Ann. 58- ance of services. See Utah review, 13-4(2) (2007). however, immune from lHiabil- sponsoring legislature, ex ity arising patients' regarding in a review of pressly excepted claims ethics, any not relieve provider's professional care. "This section does a health care (2007) provision prevents provides from introduc this 1. Utah Code section 26-25-3 ing type "(alll in a creden this of evidence state information, interviews, reports, suit, tialing may question still be a of fact or other data furnished there ments, memoranda, any findings chapter, or con reason of reasonably hospital whether administrators re privi resulting from those studies are clusions credentialing of the lied on the determination subject leged are not communications independently given infor available committee use, any legal discovery, receipt in evidence in mation. proceeding While kind or character." ("Statute[s] provider incurred should be ... construed so that care and providing professional part treatment provision] inoperative [or no will be any patient." superfluous, insignificant, void or and so that (inter destroy one section will not another." import 1 12 In to discount the its effort omitted)). quotation nal marks exception, Hospital argues Mark's St. 'provid- ... that "St. Mark's is sued for III THE PLAIN LANGUAGE OF In-
ing professional care treatment'.... UTAH CODE SECTION 26-25-14 stead, credentialing for St. Mark's is sued its BAR DOES NOT NEGLIGENT regard prior to Dr. decisions with Halversen CREDENTIALING CLAIMS provided to the time that Dr. Halversen 'professional care and treatment which about Finally, Utah Code 26- complains...." reject Plaintiff We this dis- plain 25-1 language reading bolsters this tinction. The determination is 26-25-1, immunity. limited Section similar decision doctor's fitness to grants sections 58-13-4 and im provide patient clearly care-and covered "(a) munity providing information or ma pro- (b) section; terial authorized in this releasing patients' regarding provision tects *5 publishing or findings and conclusions of negligent that care. Ms. Archuleta's creden- groups in referred to this section to advance tialing alleged shortcomings claim is for (c) education; health research and health or Hospital's St. Mark's review Dr. Halver- releasing publishing summary a of these qualifications provide sen's to treatment. studies chapter." accordance with this Moreover, claim is 26-25-1(5) (2007). Utah Code Ann. We solely qualifications not based on the of a noted, have practitioner provide health treatment. purpose of th{is] is to im- statute[ ] The claim must also assert the element of prove by allowing health-care damages. damages These arise im- personnel "morbidity to reduce proper or substandard care. negli- Claims of mortali- ty" provide and to information to evaluate care, gent credentialing patient in the improve "hospital and health care." context, mutually are thus not exclusive. privilege, personnel Without the might be Any argument exception 13 that the pro information, give reluctant such and the 58-18-4(8) vided in only apply should to situ accuracy of the information and the effec- ations enumerated in that same section is tiveness of the studies would diminish unavailing. ignores also This contention the greatly. overlapping territory between St. Mark's Inc., Hosps., 537, Benson v. I.H.C. 866 P.2d Hospital's proposed reading broad of section (Utah 1993).2 Again, plain immunity under the and situations enumerated section, legislature's of this the section which include: committee relates to the evaluations dissemina and determinations the information, tion of quality care; not to care. In of health provided whether deed, appeals recognized, as the court of health "the necessary, appropriate care was hospi [statute] was never intended to properly performed; shield ethical standards re view; potential liability provide tals from diagnosis or to hos the patients treatment of pitals protection state; 58-13-4(8) malpractice from medical within the ete. Subsection v, claims." Cannon Reg'l Salt Lake Med. legislature's indicates the protect intent Ctr., Inc., 352, ¶ 23, App UT 121 P.3d patient's ability to damages recover providers, despite health care the immunities
provided. 58-18-4(8), In discounting IV. NEGLIGENT CREDENTIALING Hospital's reading give St. Mark's would the AIS VALID CLAIM IN UTAH contrary no effect. This is to basic statutory interpretation. rules of See State majority 115 A "substantial 57, ¶ 9, v. 2009 UT recognize P.3d 265 other common law negli states" Jeffries statute, interpreting previous purpose This case was version of but the remains the same. a viable claim. Larson statutory provisions or with its as gent relevant 300, analysis provisions these Wasemiller, of how 306-309 738 NW.2d interoperate regard with to the (Minn.2007) that have (surveying states Specifically, providers Utah. credentialing claims and adopted action). majority's disagree conclusions the cause of We legal basis for operation of Utah Code section about analysis negligent cere- agree with the only I conclude that that 58-13-5.1 Not do application of broad dentialing "simply precisely plain language reaches statute's at negligence," id. principles law common of claim advanced Ms. Archule- the kind 307, natural extension of torts such and is a ta, majority's disagree with the rea- also hiring. Id. at 308. There as only concluding apply that it should sons for recognizing strong policy reasons peer review. I believe that in the context of action, foreseeability of including the cause majority's interpretation of the relevant prop hospitals fail to patients where harm between gives statutes rise to inconsistencies qualifications, see erly investigate a doctor's Cmty. Hosp., 99 grant of Misericordia and other related Johnson v. (1981), 708, 156, 164 statutory provisions. 301 N.W.2d Wis.2d " hospitals] to moni position 'superior [of argues that T19 Ms. Archuleta also physician performance." tor and control open operation courts and uniform of laws Doe, 1241, 1245 F.Supp. Domingo v. leg- clauses of the Utah Constitution bar the (D.Haw.1997) Bryant, (quoting Pedroza v. enacting islature from the kind of (1984)). 677 P.2d 101 Wash.2d asserted St. Mark's this case. Given formally recognize negligent therefore We majority that the holds that Ms. Archuleta is valid common-law cause of credentialing as a claim, precluded bringing her it is *6 action in Utah. unnecessary majority to address interpret arguments. these Because I would CONCLUSION immuni- Code section 58-18-5 to confer Utah reading comprehensive of section 16 A Marks, ty I address on St. will also harmony language, in with sections 58-13-5's I that the did not reasons believe demonstrates 58-13-4 conferring in violate Utah Constitution negli- to immunize legislature did not intend immunity. this credentialing brought pa-
gent negligent expressly also hold that THE tients. We I. LEGISLATURE HAS GRANT- credentialing is a valid common-law cause of ED HEALTH CARE PROVIDERS therefore reverse the action in Utah. We IMMUNITY FROM CLAIMS FOR of the cre- district court's dismissal THE NEGLIGENT CREDENTIAL- and remand to the district dentialing claim ING OF PHYSICIANS proceedings for further consistent with court grants the three of St. Of opinion. this case, the broadest is Marks invokes this at Code section This found Utah 1 17 Justice PARRISH and Justice section states that in Chief Justice NEHRING concur (7) An individual is a member of a who opinion. DURHAM's administration, board, committee, hospital DURRANT, Justice, Associate Chief staff, professional department, medical dissenting: ..., organization providers health care of {18 entity, agree hospital, other health care respectfully dissent. professional organization conducting majority's approach to stat- general with the review, sponsoring immune agree [is] I cannot with its utory construction. liability arising plain language of the conclusions about grants sufficient im- majority that section 58-13-5 would confer also concludes that the 1. The case, munity I do St. in this shield Marks found in Utah Code section statutory provisions negli- hospitals address whether these other do not shield and 26-25-1 hospital. gent credentialing conclude also shield the claims. Because I provider's profes credentialing simply a health care review. But review this statute ethics, competence, moral sional medical does not contain this limitation. Section 58- turpitude, 13-5(7) or substance abuse.2 broadly provides individuals "participatling] in a review aof 58-18-5(7) by section The reviews described provider's ... competence" "im- precisely credentialing the sort of constitute liability." Nothing plain mune from in the suggests review for which Ms. Archuleta lia- 58-18-5(7) language suggests bility imposed. Specifically, Ms. Ar- can be seope immunity granted any way is "negligent the term cre- chuleta describes dependent brings on who the suit. dentialing" a form of "short-hand" for the as duty hospital breach of a that arises when a majority £23 The explain does not how "undertakes ... to render services to anoth- statutory language fails to reach the recognize necessary er which should as [it] Rather, claims advanced Ms. Archuleta. protection for the of the other."3 Ar-Ms. majority concludes that chuleta does not claim that Mark's St. apply does not respondeat supe liable under the doctrine of portions claims because other of Utah Code is, rior. That she does not contend that Dr. apply only section 58-183-5 in the context of employee hospital was an Halversen peer review. hospital vicariously for whose actions the Rather, liable. she claims that St. Mark's 1 24 In support argument, of this the ma- independently negligent permitting was jority grants refers to the other two of immu- Dr. Halversen to use its facilities.4 nity contained in this section. One of these words, allegation negli- 'I 21 In other her grants shields individuals who gent credentialing alleged Divigion is based on short- provide information to the of Profes- comings hospital's in the review of Dr. Hal- ("DOPL").6 Licensing sional The other qualifications provide versen's treatment.5 shields members of a exactly This is the kind of the DOPL board from suits based on "decisions plain language of the statute Put addresses. made or actions in response taken to infor- differently, Ms. Archuleta seeks to hold St. acquired by major- mation the board."7 The allegedly Marks liable for harms that arose that, ity because of the states nature of these *7 "from in a review of a health grants immunity, of the entire section con provider's competence." ... medical templates only immunity "between a doctor whose argues, majori- credentials are under review Ms. Archuleta and the and the 58-18-5(7) concludes, ty suppliers makers; of grants that section information and decision immunity only brought by immunity from [not] suits "fellow a between and a hos pital." professionals" subject were who the of the 58-13-5(7) (2007) treatment, § 2. (emphasis negligently provided Utah Code Ann. care or St. added). grant immunity by conferred Mark's could be held liable under traditional way principles respondeat statute in superior. no alters the and licensing requirements imposed hospitals on and physicians by Department the Utah of Health 26-49-204(1)(a) 5. Utah (Supp. Code section Licensing. and the Division of Professional 2009) See "credentialing" "obtaining, defines as veri- 58-1-106, 58-67-201(3)(b) §§ Utah Code Aun. fying, assessing qualifications and the of a health (authorizing the Division of Professional treatment, care, Licens- practitioner provide to or ser- ing suspend physicians or revoke licenses of vices." definition, This like the characterization engaged conduct); unprofessional Archuleta, Utah Ad- by suggests advanced Ms. that (requiring hospitals min. Code R. -3-6 square- claim for will fall adopt procedures approved by review the De- ly immunity by contemplated within the section partment authorizing of Health and 58-13-5(7) sanctions for provid- as a "review of a health care hospitals comply). that fail to competence." er's ... medical (Sec- 58-13-5(6)(a). Appellant (quoting 3. § Br. at 6. Utah Restatement Code Ann. ond) (1965)). § of Torts 58-13-5(6)(b). 7. 4. St. Mark's concedes that if Ms. could Archuleta prove agent employee Supra that an of St. Mark's (6). operative view, It used different subsection my this conclusion 25 In 58-18-5(7) simply scope. its It directed the language to define scope of subsection the immunity at different classes of grants majority's interpre- from the not follow does (6)(b). 58-18-5(6)(a) and categories of subsections and different potential tation defendants analysis on an First, majority's Yet, is based the activity. regardless of these differ- from, nor apparent neither that, that is ences, majority urges simply inference be- by, words of the statute. (6)(a) (6)(b) commanded only apply cause subsections depends Further, majority's conclusion (7) suit, physicians bring subsection when logically that does not extrapolation an necessarily a interpreted be to contain must ma- inference. The from that initial follow my opinion, limitation. In this ex- similar (6)(a) and jority isolated subsections has trapolation logically is flawed and inconsis- (6)(b) that, 58-18-5 and reasoned of section language broad used in subsec- tent with the likely plaintiffs are the physicians because (7). by those subsec- contemplated the lawsuits Further, express 1 28 the lack of an limita- tions, only they necessarily plaintiffs scope immunity important tion on the by precluded the section as suits are whose make it that because related statutes clear do not contain whole. But these subsections legislature in- similar limitations-when might limit them in this any language that explicit. tends to create them-are made questionable. way, this inference is so 58-18-88) instance, grants, For initial Regardless of the flaws immunity hospitals physicians, both step in the I do not believe the next premise, explicitly malpractice limited to "medical serutiny. majority's reasoning withstands 58-18-2.6(2)(a) grants Section action[s]." grants immunity if Even subsections immunity explicitly that is limited to similar (6)(b) (6)(a) apply only to suits should damages resulting "assist[ing] gov- civil immunity brought by physicians, the agencies" specific, enumerat- ernmental im- purposes for of this case-the relevant health care activities.9 And section 58- ed (7)-is munity forth in subsection direct- set 13-4(8), grants which for decisions activity. a different class of Subsec- ed at committees, peer made certain review (6)(b) (6)(a) address the tions immunity by explicitly excepting limits and indi- enjoyed DOPL board members "Hability providing pro- incurred in claims for who share information with DOPL viduals any patient." care and treatment fessional "furnishing They grant board. and for "decisions made or ac- information" 129 These sections make clear They simply do not address tions taken." to confine when the has intended protects hospitals immunity it creates it has done so with liability arising "participation a re- statutory limiting scope competence." [physician's] view of *8 immunity specific causes of action and to Instead, immunity in this is set forth subsec- any factual The of such scenarios. absence (7) (7). although is re- And subsection 58-18-5(7) strong language in section is a (6)(a) (6)(b), this fact lated to subsections legislature to indication that the intended require that limitations from one does not than made impose no limitations other those applied another. That these subsection be to explicit by statutory language. This re- the address different sorts different subsections plainly stated in this see- inforces what categories poten- of of lawsuits and different liability may hospi- a imposed be tion-no against an as- tial militates such defendants in a tal of its review because sumption. competence. physician's a [ immuni- legislature separated the (7) majority limits these subsections immu- 1 30 The ty in subsection from the contained potential lability in an in to a narrow subset of nity to reviews set forth relevant DOPL facility immunity granted available for use in distribut- 9. The activities for which administering ing pharmaceuticals vaccines. responding health state, local, to or national emergencies, responding 58-13-2.6(2)(b). bioterror- to threats of Code Ann. See Utah ism, making responding epidemic, a to an intends, statutory provi- attempt to construe these these limitations when it so I would harmony provisions way in in "in with other construe the statute that makes sions necessary impose it with other to such a limitation in a the same statute statutes chapters." the and related legislature under same section where the did not do so. However, purpose employing for this Second, majority's interpretation "produce to canon of construction is harmo- leg- of section 58-183-5 is inconsistent with a general, question nious whole." In provided islative mandate that information to appropriateness disregarding plain statu- peer review committee not be used in court tory language attempt in an to construct a proceedings. Specifically, section 26-25-83 case, But in this it harmonious whole. find provides that regarding pa- when information majority's especially inapt because the inter- provided tient treatment and care is to a pretation of the statute is inconsistent with committee, peer review that information is portions other of the code. communication| "privileged deemed to be a ]" use, First, subject discovery, although is "not
1 31 section 58-18-5 relates receipt any legal in in lability arising sharing proceeding evidence information 14 Indeed, kind or character." a violation physician's competence, and review of a of this restriction is a B provisions chapter in class misdemeanor.15 other of the Utah potentially This section-which erects multiple grants immunity insur- Code set forth judicial mountable barriers resolution of related to other activities. Some create im- very claims-is at the munity providing charitable least inconsistent with the notion that section immunity care while others create from Ha- silentio, preserves exception, an sub bility emergency providing when certain ser- Reading chapter of credentialing. for claims of A vices.12 the Utah much more harmonious reconciliation whole, only Code as a valid I can bases provisions recognizes these the need to limiting find for the various kinds of immuni- proceed- use this sort of information court ty conferred are the bases contained in the ings by grant is obviated example, text. For section 58-13-4 creates contained section for the work done certain com- mittees, it an contains for suits Third, majority's interpretation T33 "professional and treat- carries it a corollary. troublesome Be- ment." Unlike the use cause it asserts that the conferred explicit exception of an indicates that contemplate section 58-13-5 does not im- specifically considered whether suits, munity interpretation its immunity provided preclude would suits protect would not members of the DOPL by patients explicitly provided it licensing board who make decisions from Indeed, every would not. other by patients suits physicians who were clearly pro- chapter licensed the board.16 Nor it in this contem- would plates by patients. majori- who, suits Under the faith, good tect individuals provide ty's only interpretation, in section 58-18-5 is information to the DOPL board from such necessary to infer such a limitation from majority's proposition suits. Given the language that is not included in the statute. applies only the whole of section 58-183-5 *9 legislature's ability Given the clear by physicians, to craft suits apparent there is no 63G-7-301(5)(c) (2008) ap- Utah Code 16. 10. See State v. 2002 132, ¶ 8, UT 63 Schofield, (internal omitted). quotation P.3d 667 marks parently governmental retains traditional immu- nity by issuing, for actions taken DOPL boards in Martino, 87, ¶ 12, 11. Berneau 2009 UT 223 denying, suspending, failing suspend or to (internal omitted). quotation P.3d 1128 marks Although appear revoke licenses. this would 58-13-5(6)(b) superfluous, render section I nev- § 12. See Utah Code Ann. 58-13-2 to -3. ertheless find it inconsistent that the specific grant § 13. Id. would enact this DOPL-oriented immunity silently preserve but an (2007). § 14. permit patient would suits. § 15. Id. 26-25-5.
1053
(6)(a)
open
construing
cause of action. The
courts clause of
subsection
basis for
(6)(b)
patients
pursuing
preclude
provides
the Utah Constitution
as follows:
against DOPL board members
their claims
open,
every per
All courts shall be
who share information
and individuals
son,
injury
per
for an
done to him in his
any
In the
board.
absence
the DOPL
son, property
reputation,
shall have
statutory language indicating that the immu-
law,
remedy
due
which shall
course
applies only to suits
nity in these sections
be administered without denial or unneces
it is far more consistent
to inter-
physicians,
sary delay;
person
no
shall be barred
grant
pret each subsection
prosecuting
defending
before
members, and DOPL
hospitals, DOPL board
State, by
tribunal
in this
himself or coun
informants, regardless
brings the suit.
of who
sel, any
party.17
civilcause to which he is a
Any
interpretation
other
inserts
into the
exceptions
simply
cannot be
statute
legislation implicates
open
T36 Before
the
plain language.
found
the statute's
clause,
legislation
abrogate
courts
must
existing right
an
of action in
whole or
IMMU-
II. GRANTING STATUTORY
part.18
legislation
abrogates
But even
CRE-
NITY FROM NEGLIGENT
existing right
an
of action does not violate
CLAIMS DOES NOT
DENTIALING
open
injured per
courts clause when "an
THE UTAH CONSTITU-
VIOLATE
son
an effective and reasonable alterna
[has]
TION
remedy 'by
tive
due course of law' for vindi
if
Archuleta contends that Utah's
34 Ms.
cation of his constitutional
A
interest."
statutory scheme bars
cre-
current
remedy
"an effective and
reasonable alter
claims,
dentialing
then the scheme violates
abrogated
native" to the
cause of action so
operation of
open courts and uniform
long
provided by
as the benefit
the alterna
clauses of the Utah Constitution. With
laws
remedy
"substantially equal
tive
in value
clause,
open courts
asserts
regard to the
she
remedy abrogated."2
or other benefit to the
grant
is unconstitutional
that the
open
courts clause is
satisfied
abrogates
right
a common law
because
directly against
case because a suit
the doc
remedy
creating an alternative
without
negligence
tor for his own
is a reasonable
public policy
support
does not
the abro-
remedy.
alternative
gation.
regard
opera-
to the uniform
With
clause,
argues
of laws
Ms. Archuleta
patient
137 The true harm that a
suffers
grant
has the effect of
that this
type
injury resulting
in this
of case is the
treating similarly situated individuals differ-
physician's negligent
from the
actions.
If
ently.
argu-
each of these
will address
physician
performed
surgery
had not
in turn.
ments
negligently,
damages
are no
there
solely
could seek based
on the assertion that
Immunity
A.
Does Not
This Grant of
physician may
negligently
have been
cre-
Open
Violate the
Courts Clause of
Accordingly, I
hold that a
dentialed.
would
Constitution
Utah
and effective alternative
to a
reasonable
claim for
exists
legislative
135 The
negligent credentialing claims does not
negligence
against
form of a
action
the doe-
alleged negligence
tor whose
caused the
there
open
courts clause because
violate
remedy
plaintiff's
injury.
actual
is a reasonable alternative
to such
a 8
principles
negligence.
common law
See
17. Utah Const. art.
Wasemiller,
supra
(quoting Larson v.
Dist.,
Tindley
City
v. Salt Lake
Sch.
2005 UT
(Minn.2007)).
N.W.2d
*10
Although
30, ¶ 17,
contends that statutes premised on cere- negligence
eliminate
dentialing allowing while other claims based negligence ...
on different bases of- operation of
fends" the uniform
laws clause.
uni-
T39
Archuleta is incorrect. The
Ms.
immunity would be unconstitutional for fail- Respondent. ing permit-all to bar-or tort actions. The No. 20090859. operation uniform of laws clause does not require type all-or-nothing approach Supreme Court of Utah. problem. to a delicate and nuanced Accord- ingly, legislature's would conclude Aug.27,2010. eredential- ing oper- claims does not violate the uniform clause.
ation laws
CONCLUSION
140 Ms. Archuleta seeks to recover from Hospital allegedly
St. Mark's for harm by physician working facility.
caused in the hospital
She asserts that the should be held exercising
liable for substandard care when
reviewing physician's competence
practice majority medicine. The concludes the claim is not barred the Health Act, Immunity Liability
Care Providers though provision
even that act includes hospitals
makes "immune from aris-
ing in a review of a health (Utah 1993) §I, Const. art. Utah 22. Lee v. 867 P.2d Gaufin, Lewis, (Utah (quoting Malan v. 693 P.2d 1984)).