TIFFANY BINGHAM, Appellant, υ. GEORGE C. GOURLEY, D.O., and MCKAY L. PLATT, M.D., Appellees.
No. 20230436
SUPREME COURT OF THE STATE OF UTAH
September 5, 2024
2024 UT 38
This opinion is subject to revision before final publication in the Pacific Reporter
Heard April 15, 2024
On Direct
Fourth District, Provo
The Honorable Darold J. McDade
The Honorable Sean M. Petersen
No. 200401253
Attorneys:
Stephen K. Christiansen, Kathleen M. Liuzzi, Joshua B. Cutler, M. Kelton Gardner, Salt Lake City, for appellant
Benjamin K. Lusty, Cami R. Schiel, Brian P. Miller, Andrew L. Roth, Salt Lake City, for appellee George C. Gourley, D.O.
Kirk G. Gibbs, Devin H. Geier, Salt Lake City, for appellee McKay L. Platt, M.D.
JUSTICE POHLMAN authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN, and JUSTICE HAGEN joined.
INTRODUCTION
¶1 In this appeal, Tiffany Bingham challenges the constitutionality of the Utah Health Care Malpractice Act‘s (the Malpractice Act) four-year statute of repose. See
¶2 Bingham, whose claim against her doctors was dismissed under this statute of repose, contends that the statute violates the Utah Constitution‘s Open Courts Clause. Bingham also contends that the statute of repose is unconstitutional under both the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the Utah Constitution‘s analog, the Uniform Operation of Laws Provision.
¶3 The doctors respond that the statute violates none of these provisions. But in the event we identify an open courts violation, the doctors ask us to overrule Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985), in which this court established a three-part test to analyze challenges under this clause of our state constitution.
¶4 We conclude that Bingham has not shown any constitutional violation, and, at this time, we do not reconsider our open courts caselaw. Accordingly, we affirm the district court‘s order dismissing Bingham‘s claim.
BACKGROUND1
¶5 In July 2010, Dr. George C. Gourley performed surgery on Bingham. After Bingham experienced post-operative complications, Gourley performed a second surgery, just eight days after the first, with Dr. McKay L. Platt assisting. For an extended period following the second surgery, Bingham continued to experience health problems. After eventually seeking out the care of another physician, Bingham underwent corrective surgery in November 2017. Bingham‘s new physician found damage from the 2010 procedures, a discovery that led to the removal of her kidney.
¶6 In August 2020, Bingham sued Gourley and Platt (collectively, doctors). As relevant here, she brought a claim for negligence, alleging that the doctors breached the standard of care when treating her in 2010. She also alleged that she did not discover their breaches until November 2017. Recognizing that she had commenced her action more than “four years after the date of the alleged act, omission, neglect, or occurrence,” Bingham also sought a declaration that the Malpractice Act‘s four-year statute of repose is unconstitutional. (Citing
¶7 Gourley and Platt moved to dismiss Bingham‘s complaint. They argued that because she filed suit more than ten years after the alleged medical malpractice, her claim was time-barred by Utah Code subsection
¶8 After hearing arguments, the court agreed with the doctors, concluded that the statute of repose met constitutional muster, and dismissed Bingham‘s negligence claim with prejudice. The court reasoned that the statute “does not violate the open courts
ISSUE AND STANDARD OF REVIEW
¶9 Bingham contends that the district court erred in granting the doctors’ motion to dismiss, asserting that Utah Code subsection
¶10 We review the district court‘s decision granting a motion to dismiss for correctness, giving no deference to its decision. Feldman v. Salt Lake City Corp., 2021 UT 4, ¶ 11, 484 P.3d 1134. Likewise, “we review the district court‘s determination of the constitutionality of a statute for correctness.” Id. ¶ 12.
ANALYSIS
¶11 In 1976, the Utah Legislature passed the Utah Health Care Malpractice Act. See Lee v. Gaufin, 867 P.2d 572, 584-85 (Utah 1993). As part of that Act, the legislature enacted Utah Code subsection
¶12 Bingham commenced her action in 2020 for alleged negligence that occurred in 2010. Because this time frame exceeds the four years allowed by subsection
¶13 We begin with Bingham‘s open courts argument. We then turn to her uniform operation and related equal protection arguments. Without reconsidering our caselaw interpreting the relevant constitutional provisions, we conclude that Bingham has not shown that the district court erred in determining that Utah Code subsection
¶14 Bingham first contends that the Malpractice Act‘s statute of repose violates the Utah Constitution‘s Open Courts Clause “by effectively eliminating an existing legal remedy without providing a reasonable alternative remedy and without a clear social or economic evil to be eliminated.” She further argues that the statute‘s “time limit is arbitrary and unreasonable on its face because the four-year bar will inevitably deny a significant number of individuals, like Bingham, their right to seek redress for legal injuries that are yet to be discovered.” We conclude that Bingham has not shown that Utah Code subsection
¶15 The Open Courts Clause states, “All courts shall be open, and every person, for an injury done to the person in his or her person, property, or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, with or without counsel, any civil cause to which the person is a party.”
¶16 Beginning with Berry, id. at 680, we have used a three-part test to determine whether a legislative act runs afoul of the clause, Waite v. Utah Lab. Comm‘n, 2017 UT 86, ¶ 19, 416 P.3d 635. First, we look to whether the legislature has abrogated a common law cause of action. Id. Second, if it has abrogated a cause of action, we next “determine whether the law provides an injured person an effective and reasonable alternative remedy.” Id. (cleaned up). Third, “[i]f there is no substitute or alternative remedy provided,” we will uphold the abrogation of a cause of action against an open courts challenge “only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective.” Id. (cleaned up).
¶17 The Berry test has been the subject of considerable criticism since its adoption in 1985. Some have argued for its repudiation on the basis that it violates separation of powers principles. See, e.g., Judd v. Drezga, 2004 UT 91, ¶ 11, 103 P.3d 135 (declining the Utah Attorney General‘s invitation “to disavow our Berry line of cases, and to recognize that by adopting the Berry approach we have assumed powers and duties not properly held by the court, but reserved for the legislature“). And members of this court have challenged its footing and argued for its replacement. See, e.g., Waite, 2017 UT 86, ¶ 36 (Lee, A.C.J., concurring in the judgment) (”Berry has outlived its usefulness. The time has come to overrule it.“); id. ¶ 95 (Pearce, J., concurring) (collecting cases).
¶18 To date, the test‘s core elements have withstood these challenges. See, e.g., id. ¶¶ 31-34 (majority opinion) (stating it was not the appropriate case to reach the issue of whether the Berry test should be overturned); Judd, 2004 UT 91, ¶ 11. But despite the test‘s resilience, our application of it has evolved.
¶19 Notably, in Judd, this court recognized “an obligation of deference to legislative judgments in a Berry review, and to the extent this differ[ed] from our prior application of Berry,” we “disavowed” those prior applications. 2004 UT 91, ¶ 11. We emphasized this shift again in Waite, explaining that although pre-Judd open courts cases began with the presumption that the challenged statute was unconstitutional, that view “is no longer good law.” 2017 UT 86, ¶¶ 21-22. And with this evolution, Bingham accepts the burden of establishing that the three parts of the open courts test are in her favor.3 See supra ¶ 16.
A. Clear Social or Economic Evil
¶21 Our inquiry on the first component is “limited.” See Judd, 2004 UT 91, ¶ 13. This means that even when the “empirical truth” of the legislature‘s stated purpose for abrogating a remedy is disputed, “we will not undertake the same investigation as the legislature, reviewing its data-gathering methods and conclusions to determine whether the stated legislative findings are perfectly correct.” Id. ¶ 15. Instead, “[w]hen an issue is fairly debatable, we cannot say that the legislature overstepped its constitutional bounds when it determined that there was a crisis needing a remedy.” Id. ¶ 15.
¶22 Applying the first component of the Berry test, the district court concluded that Utah Code subsection
¶23 Given these legislative findings, the district court concluded that “whether a crisis in the health care industry exists, and [what] causes [it], [are] fairly debatable and courts cannot overturn the work of the Legislature by substituting their view on a policy dispute for the [Legislature‘s view].” Although Bingham disagrees and insists that there is no “clear social or economic evil to be eliminated,” she has not shown error in the court‘s analysis under Judd‘s deferential standard. See 2004 UT 91, ¶¶ 11, 15.
¶24 In her opening brief, Bingham does not engage with the “fairly debatable” standard and instead largely tries to meet her burden by urging us to apply pre-Judd caselaw, in which we invalidated other statutes of repose because we doubted legislative views on rising insurance premiums and growing jury verdicts. See Lee v. Gaufin, 867 P.2d 572, 583-88 (Utah 1993) (examining legislative data to declare a statute of repose applicable to minors’ claims for medical malpractice unconstitutional under the uniform operation of laws provision); Berry, 717 P.2d at 672-73, 680-83 (questioning, as part of an open courts analysis, the legislature‘s reliance on national data in enacting a statute of repose for products liability claims). Bingham invites us to follow suit and to reject the legislature‘s codified findings of a health industry crisis.4 But the doctors counter that
¶25 Although Bingham acknowledges Judd, she minimizes its impact on the applicability of our pre-Judd caselaw, arguing that this court “continues to apply the Berry test in essentially the same form.” Yet the lens of our pre-Judd jurisprudence was less deferential to legislative enactments. As we explained in Waite, our analysis in Judd “clarified that the view of the presumption of constitutionality we expressed in [our earlier cases] is no longer good law.” 2017 UT 86, ¶ 22 (citing Judd, 2004 UT 91, ¶ 11). Thus, we cannot simply adopt our criticisms of legislative findings from the cases Bingham cites and reach the same conclusions here.
¶26 Instead, to succeed in challenging the statute of repose under the first component of Berry‘s third part, Bingham must show that the legislature‘s concern over increasing medical malpractice claims and judgments was not “fairly debatable.” Judd, 2004 UT 91, ¶ 15. But Bingham has not made that showing.
¶27 In reply, Bingham acknowledges the “fairly debatable” standard but claims it is unmet because “the legislature, by its own admission, had no reliable data to justify its actions.” In support, Bingham cites a 1976 report by the Office of Legislative Research addressing medical malpractice insurance problems. The report stated that “no final conclusions” could be reached as to the appropriateness of high malpractice premiums until the State Insurance Department studied the data of each insurance company. OFF. OF LEGIS. RSCH., STATE OF UTAH, MEDICAL MALPRACTICE INSURANCE PROBLEMS: REPORT TO THE 41ST LEGISLATURE, at 20 (Jan. 1976) [hereinafter LEGISLATIVE RESEARCH REPORT]. But that single observation about the need for additional study does not suggest that there wasn‘t a crisis that warranted legislative attention. In fact, the fifty-page report was dedicated to addressing the problems posed by “sizable increases in premiums for malpractice insurance” and the even “more serious problem” faced by some states “of a lack of malpractice insurance at any price.” Id. at 2. Thus, contrary to Bingham‘s argument, the report supports the claim that the issue was at least fairly debatable.5 See Waite, 2017 UT 86, ¶ 24.
¶28 Further, by suggesting that the legislature‘s declaration of a crisis was premature, Bingham invites us to go beyond what Judd allows. See 2004 UT 91, ¶ 13. Even if Bingham‘s citation suggests that others disagreed with the legislature‘s findings, it exceeds the scope of our review to determine whether those findings were “perfectly correct.” Id. Bingham must demonstrate that the existence of a crisis was not fairly debatable. And without prevailing on that question, “we cannot say that the legislature overstepped its constitutional bounds when it determined that there was a crisis needing a remedy.” Waite, 2017 UT 86, ¶ 24 (cleaned up).
B. Arbitrary and Unreasonable Means
¶29 The second component of Berry‘s third part asks if abrogation of a remedy is an arbitrary or unreasonable means for
¶30 We start by considering the legislature‘s findings regarding its chosen means of addressing the crisis — findings to which we owe deference. See Judd, 2004 UT 91, ¶ 11 (“[W]e recognize an obligation of deference to legislative judgments in a Berry review . . . .“). The legislature determined that to alleviate “the adverse effects” of rising medical malpractice insurance premiums and insurance claims on “the public‘s health care system,” it was “necessary to enact[] measures designed to encourage private insurance companies to continue to provide health-related malpractice insurance.”
¶31 We agree with the district court that Bingham has not shown that the statute of repose is arbitrary or unreasonable under the Berry test. The legislature determined that it needed to respond to a crisis and to protect the public‘s interest in ensuring available and affordable medical care. Just as we recognized in Judd in considering a challenge to the Malpractice Act‘s damages cap, the legislature‘s determination “was logically followed by action designed to control costs.” See 2004 UT 91, ¶ 16.
¶32 And the legislature did not resort to a statute of repose without some justification. Committees commissioned to study the issue recommended the four-year statute of repose over the previous ten-year maximum time limit for health care claims. The Committees observed that the ten-year limit meant that “a claim for an injury in 1975 can in reality be filed up to 1985,” which caused a “long-tail” situation, forcing insurers “to maintain inordinately large reserves for claims that may not be filed for ten years after the alleged injury occurs.” REPORT OF THE GOVERNOR‘S MALPRACTICE INSURANCE EVALUATION COMMITTEE, at 3 (Nov. 1975) [hereinafter GOVERNOR‘S COMMITTEE REPORT]; see also LEGISLATIVE RESEARCH REPORT, at 26 (“The ten year maximum time limit . . . has the effect of extending the ‘long tail’ and adds to the uncertainty of predicting malpractice claims.“). One report even opined that the “long-tail” was “one of the most harmful causes of the present situation,” adding that litigation costs and difficulties caused by stale claims — including the “loss of witnesses and collateral evidence, stale records, and inevitable changes in the standards of medical practice” — contribute to the crisis.6 GOVERNOR‘S COMMITTEE REPORT, at 3.
¶33 These sources demonstrate that the legislature addressed what lawmakers perceived as a serious public policy problem after receiving expert advice about how best to resolve it. Even if this court were to disagree with the legislature‘s policy choice, “our power does not extend so far as to permit imposition of our views on such policy disputes.” Waite, 2017 UT 86, ¶ 27 (cleaned up). Thus, under the circumstances here, we cannot say that the four-year statute of repose was an arbitrary, unreasonable way to achieve the legislature‘s stated purpose of protecting the public‘s health care system.
¶34 Bingham resists this conclusion, suggesting first that despite the stated legislative purpose of “provid[ing] a reasonable
¶35 Bingham also asserts that Utah Code subsection
¶36 Indeed, “[w]hen attempting to resolve problems of policy, the legislature is inevitably forced to draw lines.” Judd, 2004 UT 91, ¶ 29. And here, the legislature chose to create an exception for foreign-object claims, which, by their nature, do not present the same difficulties that other stale claims present.8 As one court explained, problems “of proof, and changes in the standard of care, do not plague foreign object cases, no matter how long ago the alleged malpractice occurred. The later discovery of the foreign object is, for all practical purposes, proof of some earlier negligence on the part of a health care provider.” Harlfinger v. Martin, 754 N.E.2d 63, 72 (Mass. 2001). “By comparison, the passage of time makes other types of malpractice claims difficult to defend . . . .” Id.; see also supra ¶ 32. Thus, contrary to Bingham‘s assertion, there is a rational explanation for the legislature‘s line-drawing consistent with its stated purpose, and her complaint about that choice does not overcome the deference we owe to “legislative judgments in a Berry review.” See Judd, 2004 UT 91, ¶ 11.
¶37 In sum, Bingham has not persuaded us that the district court erred in rejecting her open courts challenge to the Malpractice Act‘s statute of repose.9 We now turn to her remaining constitutional theories.
¶38 Bingham next contends that the district court erred in dismissing her claim because Utah Code subsection
A. Bingham Has Not Shown that Subsection 404(1) Runs Afoul of the Uniform Operation of Laws Provision
¶39 The Uniform Operation of Laws Provision states, “All laws of a general nature shall have uniform operation.”
¶40 Upholding legislation implicating open courts rights against a uniform operation challenge requires the legislation (1) to be “reasonable“; (2) to have “more than a speculative tendency to further the legislative objective and, in fact, actually and substantially furthers a valid legislative purpose“; and (3) to be “reasonably necessary to further a legitimate legislative goal.” Id. (cleaned up).
¶41 As with our Berry analysis, “our uniform operation of the laws analysis is guided by the well-settled proposition that all statutes are presumed to be constitutional and the party challenging a statute bears the burden of proving its invalidity.” Merrill v. Utah Lab. Comm‘n, 2009 UT 26, ¶ 5, 223 P.3d 1089 (cleaned up). Bingham does not take issue with this proposition. And she further accepts the burden of persuasion on all three components of the uniform operation test.10
¶43 Thus, it follows that it is easier for Bingham to demonstrate a constitutional infirmity under the uniform operation analysis compared to an open courts analysis. Yet we have also explained that, like the open courts analysis, “we do not proceed in our analysis under article I, section 24 as if we were called upon to answer these questions in the first instance.” Id. ¶ 22. Instead, we conduct this uniform operation analysis in a manner that gives “appropriate deference to the policy choices of the citizens’ elected representatives.” Id.
¶44 Like its analysis concerning the Open Courts Clause, the district court determined that subsection
¶45 First, for the same reasons we reject Bingham‘s open courts challenge, see supra ¶¶ 31-37, we conclude that she has not shown error in the district court‘s determination that the Malpractice Act‘s statute of repose is a reasonable means for achieving a legitimate legislative goal: “to protect the public” from the “adverse effects” of rising medical malpractice insurance costs by “provid[ing] a reasonable time in which actions may be commenced against health care providers while limiting that time to a specific period for which professional liability insurance premiums can be reasonably and accurately calculated.”
¶46 That leads us to ask whether Bingham has shown that the statute of repose is unconstitutional under the remaining components of the uniform operation test — the components that demand more than Berry requires of the legislation. As noted, these
¶47 In support of her uniform operation claim, Bingham continues the refrain that the statute of repose is unreasonable because it bars a malpractice claim that could not be discovered within four years. But, as we‘ve already explained, a statute of repose is not unreasonable simply because it cuts off potentially valid claims. See supra ¶ 34. Bingham could succeed by showing that, even if reasonable, the statute of repose was not reasonably necessary to further the legislative goals, or that the statute doesn‘t actually and substantially further those goals. See Judd, 2004 UT 91, ¶ 19. But Bingham doesn‘t make either showing.
¶48 Instead, she cites an Ohio case from 1987, arguing that a medical malpractice statute of repose “does not further the goal of alleviating the alleged medical malpractice insurance crisis.” (Citing Gaines v. Preterm-Cleveland, Inc., 514 N.E.2d 709, 714 (Ohio 1987).) Yet, a more recent decision from the same court applied a presumption of constitutionality and rejected a constitutional challenge to Ohio‘s four-year medical malpractice statute of repose. See Ruther v. Kaiser, 983 N.E.2d 291, 294, 296, 300 (Ohio 2012); see also Antoon v. Cleveland Clinic Found., 71 N.E.3d 974, 983-84 (Ohio 2016). The court upheld its legislature‘s “policy decision to grant Ohio medical providers the right to be free from litigation based on alleged acts of medical negligence occurring outside a specified time period,” even if the claim was undiscovered until after the period had ended. Ruther, 983 N.E.2d at 296. Thus, Gaines has little persuasive value. Its conclusion has been supplanted by the Ohio court‘s application of the presumption of constitutionality that we, too, here apply.
¶49 Similarly, Bingham‘s citation to a Washington case from 1998 is equally inapposite. (Citing DeYoung v. Providence Med. Ctr., 960 P.2d 919, 924-25 (Wash. 1998) (en banc).) There, the court determined that “[t]he relationship between the goal of alleviating any medical insurance crisis and the class of persons affected by the [relevant] statute of repose is too attenuated to survive [even] rational basis scrutiny.” DeYoung, 960 P.2d at 925. The court reached its conclusion based on its view that the materials before the legislature were insufficient to support the belief that adopting an eight-year statute of repose would meaningfully impact medical malpractice insurance rates. Id. But under the principles espoused in Judd, we can‘t engage in the same second-guessing of the data before our legislature.12 Had Bingham shown that, in fact, the expectations of the legislature have not been met, then she may have been able to satisfy the uniform operation test. But she doesn‘t engage on that component, and we cannot declare a statute unconstitutional under the applicable standard by simply substituting our view (or another court‘s view) of the data for the legislature‘s. See supra ¶¶ 30, 36; see also Judd, 2004 UT 91, ¶¶ 28-29 (concluding that the legislature‘s purpose in enacting a damages cap under the Malpractice Act is valid and legitimate and was a reasonably necessary means of achieving its purpose).
B. Bingham Has Not Established an Equal Protection Violation
¶50 Lastly, Bingham contends that Utah Code subsection
¶51 The Equal Protection Clause provides, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
¶52 Bingham contends that subsection
¶53 Bingham‘s argument fails because she has not shown that subsection
¶54 Given that Bingham has not shown error in the district court‘s conclusion that the challenged statute is a “reasonable means of addressing what the Legislature found to be a [crisis] in the health care industry,” supra ¶¶ 29, 31, 33, we cannot conclude that the statute is not “rationally related to a valid public purpose,” see Rose, 2017 UT 50, ¶ 80 (cleaned up). We therefore affirm the district court‘s decision that subsection
CONCLUSION
¶55 We reject Bingham‘s constitutional challenge to the Utah Health Care Malpractice Act‘s four-year statute of repose because she has not shown that the statute is unconstitutional under Utah‘s Open Courts Clause, Utah‘s Uniform Operation of Laws Provision, or the federal Constitution‘s Equal Protection