OPINION
T1 On intеrlocutory appeal, plaintiff Buu Nguyen challenges the district court's grant of summary judgment dismissing Intermoun-tain Health Care (IHC), which operates Primary Children's Medical Center (PCMC), from this action. The trial court held that PCMC did not have a separate and distinct legal duty to obtain Nguyen's informed consent before using a sales demonstration ventilator on his critically injured son. Nguyen argues that this issue was already decided when this court previously heard from these parties in Nguyen v. IHC (Nguyen I),
BACKGROUND 2
12 Nguyen's son suffered severe injuries in a car accident and was admitted into the pediatric intensive care unit (PICU) at PCMC for treatment. Dr. Madeline Witte was assigned to care for the child in the PICU. The child had sustained competing
13 It is noteworthy, however, that Dr. Witte served as a member of an IHC committee assigned to test, evaluate, and acquire a new life-flight transport ventilator. She was also the director of PCMC's life-flight program. 3 Additional members of the committee included its chair, IHC employee Tammy Bleak, an IHC life-flight nurse who also served as IHC's Children's Services Equipment Specialist; several neo-natal life-flight nurses; and an IHC clinical engineer. The sales demo ventilator was in the hospital for testing and evaluation purposes and was not intended for use in routine patient care. The committee, of which Dr. Witte was a member, had established a protocol for the testing and use of the ventilator, which in-eluded that it was to be used only on moderately ill, medically stable children. Additionally, the committee had given Dr. Witte the task of creating an informed consent document for parents to sign before the ventilator was used.
T 4 It is undisputed that the committee was aware that Dr. Witte was considering using the test ventilator on Nguyen's son, a critically ill patient who could not survive an interruption in ventilation. Dr. Witte called Tammy Bleak and received the committee's permission to usе the device while transporting the child. 4 IHC personnel involved with testing and evaluating the ventilator arrived to observe the equipment in use. A salesman employed by the vendor was also present to answer any questions about the ventilator. The committee members and other hospital personnel were aware that the ventilator was a sales demo that had not been used by the hospital and had the potential to fail. 5 The ventilator had not been used to transport anyone at PCMC and had not even been connected to a patient. At the time of its use, the child was classified as critically ill and medically unstable.
15 Nguyen's son was connected to the device in the PICU and monitored for approximately an hour. The machine functioned properly during that time, providing the same level of support as the child's bedside ventilator. The child was then transported without incident to the radiology department for the CT sean. While the child was being transported back to the PICU, however, the ventilator suddenly lost power and ceased working. The child died soon after. An investigation performed by the ventilator's manufacturer determined that
ISSUES AND STANDARDS OF REVIEW
16 Nguyen argues that this court decided in Nguyen I that IHC owed a legal duty to obtain Nguyen's informed consent before using the ventilator on his son and that the trial court failed to comply with the law of the case in granting summary judgment to IHC on remand. "Reviewing whether a district court complied with the mandate of an appellate court presents a question of law, which we review for correctness." Anderson v. Thompson,
17 Alternatively, Nguyen argues that the trial court erred in granting summary judgment in favor of IHC, either because there is a duty imposed by statute, see Utah Code Ann. § 78B-3-406(1) (2008),
7
or because IHC assumed a duty. The interprеtation of a statute presents a question of law reviewed under the correctness standard, affording no deference to the district court. See Utah Dep't of Transp. v. Ivers,
ANALYSIS
I. Law of the Case under Nguyen I
18 Nguyen first asserts that the district court committed reversible error in even considering IHC's motion for summary judgment. Nguyen argues that IHC was bound by the law of the case as set forth in Npuyen I and should have petitioned this court for rehearing if unhappy with what Nguyen views as our mandate rather than trying to revisit the question of its liability following our remand to the district court. See generally Thurston v. Box Elder County,
T9 We disagree with Nguyen that our prior opinion necessarily held that IHC was subject to liability on informed consent grounds. We conclude that it was consistent with the remand we ordered in the first appeal "for trial or such other disposition as may now be proper," Nguyen I,
A. Traditional Interpretation of the Statutory Duty as Applied to Hospitals
[ 10 We next consider whether IHC owed an independent duty, separate and distinct from the obligation of the treating physician, to obtain Nguyen's informed consent before using the ventilator on his son. The requirements for infоrmed consent are prescribed by statute, see Utah Code Ann. § 78B-8-406 (2008), and require a plaintiff to establish the following to recover for a provider's failure to obtain informed consent:
(a) that a provider-patient relationship existed between the patient and the health care provider;
(b) the health care provider rendered health care to the patient;
(c) the patient suffered personal injuries arising out of the health care rendered;
(d) the health care rendered carried with it a substantial and significant risk of causing the patient serious harm;
(e) the patient was not informed of the substantial and significant risk;
(£) a reasonable, prudent person in the patient's position would not have consented to the health care rendered after having been fully informed as to all facts relevant to the decision to give consent; and
(g) the unauthorized part of the health care rendered was the proximate cause of personal injuries suffered by the patient.
Id. § 78B-38-406(1). "Health care provider" is expansively defined as follows:
"Health care provider" includes any person, partnership, association, corporation, or other facility or institution who causes to be rendered or who renders health care or professional services as a hospital, health care facility, physician, registered nurse, licensed practical nurse, nurse-midwife, licensed Direct-entry midwife, dentist, dental hygienist, optometrist, clinical laboratory technologist, pharmacist, physical therapist, рodiatric physician, psychologist, chiropractic physician, naturopathic physician, osteopathic physician, osteopathic physician and surgeon, audiologist, speech-language pathologist, clinical social worker, certified social worker, social service worker, marriage and family counsel- or, practitioner of obstetrics, or others rendering similar care and services relating to or arising out of the health needs of persons or groups of persons and officers, employees, or agents of any of the above acting in the course and scope of their employment.
Id. § T8B-3-403(12) (Supp. 2012).
111 IHC concedes that PCMC falls within the statutory definition of a health care provider but argues that whether its classification as a health care provider necessarily triggers an independent duty to obtain informed consent is more complicated. In this, IHC is correct,. While courts usually "give effect to the purpose and intent" of statutes, Hoyer v. State,
B. Hospitals' Duty Regarding Informed Consent in Special Cireumstances
112 This case involves a more complicated set of facts than is typical in evaluating a hospital's duty to obtain informed consent. Here, there is ample evidence that PCMC was integrally involved with the use of the sales demo ventilator. This was not a standard piece of equipment that a treating physician might or might not have chosen to use, in her discretion. Dr. Witte and members of the IHC committee responsible for evaluating the ventilator had established a protoсol for testing the device, including that Dr. Witte was to draft an informed consent authorization for parental signature and to determine the appropriate test patients. Nguyen's son's condition was much more grave and unstable than that prescribed by the committee's approved test patient profile. The ventilator had not yet been tested on a single PCMC patient when it was used to transport Nguyen's son to another floor for a CT sean. It is undisputed that Tammy Bleak, an IHC employee and the chair of the committee, became involved in approving the use of the ventilator on the child. Other IHC employees were present and observed or participated in the ventilator's use. Even assuming that IHC had no prior intention of including Nguyen's son in the test protocol and that the ventilator was used as a last resort simply "because it was the only available transport ventilator that could provide the level and mode of ventilation support [the patient] required," there is no doubt that IHC was directly involved with the prоcedure and that equipment in PCMC's custody but not owned by it was being used outside the testing protocol put in place by IHC's committee. These unusual cireumstances present the kind of situation in which a hospital should not receive an automatic exemption from the duty to obtain informed consent.
113 Our analysis is guided by a recent Utah Supreme Court case, Jeffs v. West,
Duty must be determined as a matter of law and on a categorical basis for a givenclass of tort claims. Duty determinations should be articulated in relatively clear, categorical, bright-line rules of law applicable to a general class of cases. The duty factors are thus analyzed at a broad, categorical level for a class of defendants.
Id. 128 (citation footnotes and internal quotation marks omitted). It is with this explanation in mind that we undertake our analysis of the question presented: Whether it is appropriate to impose a duty on a hospital to obtain informed consent when unfamiliar equipment on loan to the hospital, as the hospital considers its possible purchase, is used outside of the normal course of the hospital's established procedures.
1. Foreseeability and Likelihood of Injury
$14 We initially consider whether it is foreseeable that harm might result from a hospital using unfamiliar, untested equipment. "The appropriate foreseeability question for duty analysis is whether a category of cases includes individual cases in which the likelihood of some type of harm is sufficiently high that a reasonable person could anticipate a general risk of injury to others." Id. 127. Hospitals themselves are generally not in a position to create a foreseeable risk of harm to others. But when a procedure that is out of the normal course occurs with the hospital's direct involvement, the risk of injury to a patient is foreseeable. The potential risk in situations where a hospital authorizes the use of equipment not owned by the hospital and that is largely unfamiliar to the hospital weighs in favor of the imposition of a duty.
€ 15 The test equipment situation presented in this case is akin to a clinical trial conducted by a hospital or to experimental procedures implemented under a hospital's auspices. In such cases, courts have regularly imposed on hospitals a duty to obtain informed consent. Seq, eg., Lenahan v. University of Chicago,
2. Capacity to Avoid Loss
116 The next factor we consider is whether a hospital would be in the best position to take precautions to prevent such injury in the future.
[TThis factor considers whether the defendant is best situated to take reasonable precautions to avoid injury. Typically, this factor would cut against the imposition of a duty where a victim or some other third party is in a superior position of knowledge or control to avoid the loss in question. In such cireumstances, the defendant is not in a position to bear the loss, not because his pockets are shallow, but because he lacks the capacity that others have to avoid injury by taking reasonable precautions.
Jeffs,
CONCLUSION
T17 Hospitals are not automatically immune from liability when unfamiliar equipment that is in their facilities for the purpose of evaluation is used on patients without first obtaining informed consent. It does not create an undue imposition to require that when a hospital, like PCMC in this case, allows the use of equipment that is not part of the hospital's usual inventory, the hospital has an independent duty to obtain informed consent. The case-specific analysis of proximate cаuse and breach serves to ensure that this mandate will not be used to inequitably impose liability.
1 18 Reversed.
19 WE CONCUR: JAMES Z. DAVIS and STEPHEN L. ROTH, Judges.
Notes
. Our earlier opinion did not parse out the liability with regard to specific defendants. We simply stated:
Because there was a total absence of any disclosure about the ventilator's experimental status and because the [trial] court's sole rationale given for granting summary judgment was the absence of expert testimony, we reverse the grant of summary judgment in favor of Defendants on the claim of failure to obtаin informed consent. On that claim, we remand for trial or such other disposition as may now be proper.
Nguyen I,
. A more complete statement of the underlying facts of this case is set forth in Nguyen I. See
. Although Dr. Witte was a full-time employee of the nearby University of Utah, IHC paid $20,000 annually for Dr. Witte's services as PCMC's Medical Director of Life-Flight Services.
. Tammy Bleak admitted that part of her duties as IHC's Children's Services Equipment Specialist was to ensure reliability of the sales demo ventilator through completion of the testing and evаluation process before allowing the device to be used on a patient outside of the testing and evaluation parameters. She testified at her deposition, ""I was the one who had contact with the vendors ... so [Dr. Witte] would have called me as the chair of the committee to say, we have a patient we could use this on. That's why I was called."
. We note that, while untested by PCMC at the time of its use on Nguyen's son, the ventilator was approved by the FDA for use on pediatric patients in intensive carе units and for use in transporting pediatric patients.
. The manufacturer reached a settlement with Nguyen and is not a party to this action.
. The statutes involved have not been revised, in a manner material to this case, subsequent to the events giving rise to this action. Therefore, we cite the current version of the Utah Code as a convenience to the reader.
. Auler also addressed the potential in that case for a claim against the hospital under a vicarious liability theory. See
. Indeed, in this case IHC seemed to reach the same conclusion because it had developed a protocol for testing the ventilator, including standards for the type of patient on whom it could bе tested and a consent form.
. Nguyen also argues that IHC assumed a duty to obtain informed consent through publishing and posting a Patient Bill of Rights at PCMC. Because we hold that hospitals utilizing unfamiliar equipment not typically used by the hospital owe a duty to obtain informed consent, we decline to reach this issue. See State v. Carter,