INTRODUCTION
T1 The Utah Health Care Malpractice Act requires a patient to bring a claim for malpractice no more than two years after the patient discovers or should have discovered the injury. We have interpreted this requirement to mean a patient must discover the legal injury-that is, both the fact of injury and that it resulted from negligence-before the statute of limitations begins to run. In this case, the plaintiff and appellant, Ralph L. Daniels, asks this court to determine whether under this discovery rule the statute of limitations period for his claim was triggered when he discovered that he might have been treated negligently during the course of multiple procedures performed at different times and by different providers, or when he discovered that the specific treatment he received from John K. Hayes and Gamma West Brachytherapy, LLC (collectively, the Defendants) might have been negligent. We hold that the Health Care Malpractice Act statute of limitations does not begin to run until a patient discovers or should have discovered his legal injury, including the causal event of such injury.
T2 Mr. Daniels also asks this court to consider several other pretrial rulings made by the district court regarding the admission of evidence and dismissal of claims. We affirm in part and reverse in part and remand for proceedings consistent with this opinion.
BACKGROUND
I. MR. DANIELS WAS DIAGNOSED WITH AND TREATED FOR COLON CANCER
T3 Mr. Daniels was diagnosed with stage II
1
eolon cancer in January 2001. To treat the cancer, his surgeon and a Gamma West oncologist considered two options. The first
[ 4 Before surgery and the insertion of the high dose radiation catheters, Mr. Daniels signed Gamma West's standard informed consent form. This form, he argues, failed to fully disclose numerous aspects of his radiation treatment. For example, Mr. Daniels has alleged that he was not advised nor did he consent to the experimental nature of using high dose radiation therapy for his type of cancer. He also alleges that he was not informed of the risk of radiation burns.
T5 As planned, Dr. Mintz removed the tumor and Dr. Hayes, a Gamma West physician, inserted the high dose radiation catheters on January 19, 2001. Following the surgery at Salt Lake Regional Medical Center, Dr. Hayes administered high dose radiation for four days, after which the catheters were removed. About one month later, Mr. Daniels received external radiation beam therapy at University of Utah Hospital. This treatment was administered over several weeks. Mr. Daniels alleges that the combined effect of the high dose radiation and the external radiation therapies was a biological equivalent dose of 90,500 cGy. Radiation therapy typically does not exceed 5,040 cGy.
II. FOLLOWING RADIATION TREATMENT, MR. DANIELS EXPERIENCED EXTREME COMPLICATIONS
T6 In the middle of his external radiation treatment, Mr. Daniels began to experience dire complications. First, a forty-year old inguinal hernia scar began to disintegrate. Mr. Daniels consulted with both his primary care physician and a radiation oncologist at the University of Utah. Neither informed him that the high dose radiation could have caused the hernia sear's breakdown. Instead, the radiation therapist indicated that it was likely due to an infection. Mr. Daniels also visited Dr. Mintz, who allegedly told Mr. Daniels that external radiation likely caused the problems with his hernia sear. 3 Dr. Mintz then performed surgery to repair the open wound. At the recommendation of his external radiation oncologists, Mr. Daniels returned to the University of Utah for additional external radiation treatment at the end of April 2001.
T7 The next month Mr. Daniels's recent midline and colostomy incisions also began to break down. He again consulted with Dr. Mintz, who admitted him to Salt Lake Regional Medical Center. Within a few days, Mr. Daniels's two incisions and hernia scar coalesced into a sizable, infected wound. Mr. Daniels was then transferred to the University of Utah Burn Unit, where doctors performed debriding and skin grafts in an effort to lessen Mr. Daniels's complications. During the following years, Mr. Daniels underwent numerous surgeries including: "ilieos-tomy, ileoconduit, multiple debridements of necrotic tissue ..., surgery for blockages, nephrostomies for kidney malfunction ..., and dialysis." He continues to suffer from the complications allegedly arising out of the radiation treatment.
{8 In June 2001, Mr. Daniels's wife met with Dr. Patton at the University of Utah to discuss the cause of Mr. Daniels's severe health problems. Dr. Patton told her that neither the high dose radiation nor the external radiation Mr. Daniels received could have caused his abdominal breakdown.
9 Mr. Daniels began to suspect that high dose radiation therapy was indeed the cause
III. MR. DANIELS SUED; HE LATER ADDED CLAIMS TO HIS COMPLAINT BUT WAS NOT ALLOWED TO ADD A CLAIM FOR FRAUDULENT CONCEALMENT
110 After filing a notice of intent to sue, Mr. Daniels sued Gamma West Brachythera-py, John K. Hayes, M.D., the University Hospital, and Salt Lake Regional Medical Center in December 2003 for medical negli-genee. 4 Following discovery, the University of Utah and Salt Lake Regional Medical Center moved for summary judgment on all claims against them. In August 2006, Mr. Daniels noted in a memorandum opposition that he might amend his complaint to add a fraudulent concealment claim depending on the outcome of discovery. The fact discovery deadline passed in September 2006. Mr. Daniels moved to amend his complaint in December 2006, alleging gross medical negligence, lack of informed consent, and breach of fiduciary duty. The trial court granted Mr. Daniels's motion. In July 2007, Mr. Daniels again moved to amend his complaint to add a fraudulent concealment claim. The trial court denied his motion, finding the amendment untimely and prejudicial.
IV. THE TRIAL COURT DENIED MR. DANIELSS ATTEMPT TO SUPPLEMENT ONE OF HIS EXPERTS TESTIMONY FOLLOWING THE EXPERT'S SECOND DEPOSITION
T11 As part of discovery, Defendants deposed Mr. Daniels's expert radiation oncologist, Dr. Sidney Kadish, on May 26, 2006 and September 18, 2006. Dr. Kadish subsequent ly read another expert's deposition that was taken on October 20, 2006. After reading the deposition and again reviewing Mr. Daniels's patient records, Dr. Kadish faxed changes to his deposition on October 238, 2006. In his previous depositions, Dr. Kadish stated that the high dose radiation had damaged Mr. Daniels's left ureter; on October 28, Dr. Kadish wrote that the high dose radiation had also damaged Mr. Daniels's right ureter. Defendants filed a motion to strike the changes to Dr. Kadish's deposition. The trial court granted the motion, finding that the changes were not merely corrections to the deposition but new testimony.
V. THE TRIAL COURT DISMISSED MR. DANIELSS CLAIM FOR PUNITIVE DAMAGES, WHICH HE BASED ON HIS CLAIMS FOR GROSS NEGLIGENCE, AND BREACH OF FIDUCIARY DUTY
12 After discovery, Defendants filed dis-positive motions seeking to dismiss Mr. Daniels's claims for gross negligence, punitive damages, and breach of fiduciary duty. The court denied Defendants' motion to dismiss Mr. Daniels's gross negligence claim finding that the allegations put forth by Mr. Daniels, if proven, would support a claim for gross medical negligence. The trial court, however, granted partial summary judgment on Mr. Daniels's claim for punitive damages. In doing so, the trial court noted that an award of punitive damages requires willful or intentional conduct, while gross negligence does not.
113 Additionally, the trial court granted summary judgment on Mr. Daniels's breach of fiduciary duty claim. The Defendants argued that Utah law does not recognize any disclosure duty for physicians, and moreover, the disclosure that Mr. Daniels argued for is addressed by the informed consent statute. The trial court agreed and granted the motion.
€ 14 Mr. Daniels's case was bifurcated for trial. The court first held a jury trial to determine whether the statute of limitations barred Mr. Daniels's claims.
VI. THE TRIAL COURT EXCLUDED EVIDENCE OF WITNESSES INSURANCE COVERAGE
£15 Prior to trial, both parties filed numerous motions in limine. Defendants' Mo
T16 At a pretrial hearing, the trial court granted Defendant's Motion in Limine 3, finding that Mr. Daniels had not provided sufficient evidence of bias based on a shared insurance provider. After the trial court made this order orally, Mr. Daniels's counsel asked the judge whether the potential jurors could be questioned about their exposure to or relationship with the insurance industry. The judge indicated that he would address this issue at trial.
117 On the first day of trial, the judge began voir dire by submitting a questionnaire to the prospective jurors. During a brief discussion with counsel, the judge indicated that there were still a few questions on which the parties had not agreed, but that he would resolve them. The judge then gave counsel a few minutes to review the jurors' answers to the questionnaire. Subsequently, the court began questioning the venire panel. During voir dire, the court inquired into each person's occupation, as well as their spouses' occupation, and their experiences with medical care. At the conclusion of the questioning, the court asked counsel for additional or follow-up questions. Mr. Daniels's counsel asked the judge to inquire if any of the members of the jury had ever missed the deadline for filing a lawsuit. She did not ask the judge to question the panel regarding relationships to the insurance industry.
VIL. THE TRIAL COURT INSTRUCTED THE JURY THAT THE STATUTE OF LIMITATIONS BEGAN WHEN MR. DANIELS DISCOVERED HIS MEDICAL TREATMENT HAD BEEN NEGLIGENT
{18 The parties presented evidence and argument regarding the statute of limitations during a three-day trial. In the court's and counsel's discussions of which jury instructions to use, Mr. Daniels's counsel repeatedly requested both an instruction defining negli-genee by its elements and an instruction that specifically indicated the statute of limitations did not begin to run until Mr. Daniels discovered the cause of his alleged negligent injury. Specifically, she stated: "I'd like to make a record. I think there are two types of cause, and I think it's extremely important that the jury be instructed on both. One is cause in fact, the other is legal cause." The trial court initially declined both requests. However, in the final version of the jury instructions, the trial court included a brief definition of negligence, but did not include its elements. Commenting on this instruction, Mr. Daniels's counsel indicated that she was pleased with the court's inclusion of a negligence definition but went on to object to the special verdict form used by the trial court. She said, "[Mly objections for the record are ... I don't think that the case ... that holds you don't have to know the identity of the tortfeasor ean be extended to include you don't have to know what the cause in fact of the malpractice was, and that's my objection." The trial court acknowledged that this was Mr. Daniels's "objection all along" but declined to alter the jury instruction. Thus the special verdict form presented to the jury asked them to determine whether Mr. Daniels knew or should have known he had an injury by May 6, 2001 and if so, whether he knew or should have known by the same day that the injury was attributable to negligence.
{19 The jury returned a verdict for the Defendants, finding that Mr. Daniels knew or reasonably should have known on or before May 6, 2001 of an injury and that the injury was attributable to negligence. Mr. Daniels appeals the verdict. We have jurisdiction pursuant to Utah code section 78A-3-102(3)() (2008).
ANALYSIS
€20 Mr. Daniels raises eight arguments for our consideration: (1) the jury instruction regarding what the plaintiff must discover to
I. UNDER THE DISCOVERY RULE OF THE UTAH HEALTH CARE MALPRACTICE ACT, AN INJURY IS DISCOVERED WHEN THE PATIENT BECOMES AWARE OF THE POSSIBLE CAUSAL EVENT OF HIS MEDICAL INJURY
121 Mr. Daniels argues that the trial court's jury instruction was erroneous because it failed to instruct the jury that the statute of limitations did not begin to run on his claims until he discovered that the high dose radiation therapy might be the cause of his injuries. Instead, the trial court's jury instructions and special verdict form indicated that a plaintiff must only discover an injury and that the injury was the result of negligence. The trial court specifically declined to include an instruction that the plaintiff must discover which event caused the alleged negligent injury.
122 Challenges to jury instructions require interpretations of law; therefore, we review them for correctness. Child v. Gonda,
A. Mr. Daniels Adequately Preserved His Challenge to the Statute of Limitations Jury Instruction
¶23 "Generally, 'in order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue"" Pratt v. Nelson,
124 Defendants argue that Mr. Daniels's counsel waived her objection and invited error by agreeing to the court's jury instruction on negligence. We disagree. After discussing the jury instruction that defined negligence, Mr. Daniels's counsel went on to object to the special verdict form used by the trial court. She said, "[Mly objections for the record are ... I don't think the case ... that holds you don't have to know the identity of the tortfeasor can be extended to include you don't have to know what the cause in fact of the malpractice was, and that's my objection." This objection and those that preceded it were timely. They were made while the trial court was contemplating the jury instructions the court would use during this case. Moreover, Mr. Daniels's counsel specifically objected to both the jury instructions and the special verdict form, and she specifically identified her concerns and how she believed the law should be reflected in the jury instructions. Finally, Mr. Daniels's counsel provided the court
B. The Trial Court Erred by Foiling to Instruct the Jury That the Statute of Limitations Does Not Begin to Run Until the Patient Discovers the Causal Event of His Medical Injury
T25 The Utah Health Care Malpractice Act requires that "[al malpractice action against a health care provider ... be commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs...." Utah Code Ann. § 78B-3-404(1) (2008) (emphasis added). We have repeatedly interpreted the phrase "discovered the injury" as meaning discovering the "injury and the negligence which resulted in the injury," also referred to as "legal injury." Foil v. Ballinger,
126 Discovering a legal injury requires a discovery of the causal event of the injury. This interpretation is consistent with both the plain language of the Health Care Malpractice Act and underlying policy previously considered in our health care statute of limitations cases.
1127 In previous cases we have repeatedly emphasized that a plaintiff has not discovered his injury until he is aware that negligence may have caused the injury. Deschamps v. Pulley,
1 28 Under McDougal, a plaintiff need not know the identity of the responsible tortfea-sor, but must know which medical event allegedly caused his injury. In McDougal, the patient sued one doctor, dismissed that action, and then sued a second doctor in relation to a claim arising from the same medical event-emergency room treatment for a separated shoulder. Id. at 176. The patient argued that the statute of limitations was not triggered until he discovered the actual identity of his treating physician. Id. at 177. The court of appeals disagreed. Id. at 177-78. Relying on Foil and case law from other states, the court of appeals held "that the medical malpractice statute of limitations is tied only to the discovery of the plaintiff's legal injury and not to the discovery of the tortfeasor's identity." Id. at 178.
129 In Mr. Daniels's case, however, it is not the identity of a specific tortfeasor that is at issue, but rather the identification of the medical event that caused the injury. The
1 30 Additionally, the policy underlying our previous interpretations of the Health Care Malpractice Act also requires that the statute of limitations not be triggered until the patient discovers which medical event allegedly caused his injury. In Foil we explained that the statute of limitations should be interpreted in a way that discourages unfounded law suits.
131 Tying the statute of limitations' trigger to the discovery of the cause-in-fact of a patient's injury does not leave health care professionals endlessly susceptible to revived claims. Instead, the discovery rule is tempered by a requirement that a patient act with reasonable diligence in investigating a suspected injury. Thus, the statute of limitations begins when exercising such diligence a patient should have discovered his injury and its possible negligent cause. Whether and when a patient should have discovered an injury and its cause is a fact-intensive question that requires a jury to determine, given the information available, whether the actions taken in response to an injury and the efforts extended to discover its cause were adequate. The jury cannot undertake such a fact-specific inquiry without being informed as to which event it is evaluating for whether the plaintiff was aware or should have been aware of what was the negligent cause of his injury. Therefore, we conclude that the trial court's jury instruction was in error because it failed to explain that the statute of limitations did not begin to run until Mr. Daniels discovered that the Defendants' treatment and care might have been negligent and thus might have caused his injuries.
IL THE DISTRICT COURT ERRED BY ADMITTING MR. DANIELSS SUPERSEDING COMPLAINT BECAUSE IT WAS IRRELEVANT TO sHOW WHEN MR. DANIELS SUSPECTED HIS RADIATION TREATMENT WAS THE CAUSE OF HIS INJURIES
182 The trial court abused its discretion by admitting Mr. Daniels's superseded complaint into evidence because it based its decision on an erroneous interpretation of the Health Care Malpractice Act
¶ 33 The admission of the superseded complaint was an abuse of discretion because under a proper interpretation of the statute of limitations, the purpose proposed for admitting the pleading would have been irrelevant. In this case, the trial court determined that the superseded complaint was relevant to the Defendants' argument that Mr. Daniels was aware of negligence in his medical treatment before he claimed he suspected the Defendants were negligent because he asserted claims against Salt Lake Regional Medical Center and University Hospital Under the trial court's interpretation of the Health Care Malpractice Act statute of limitations' discovery rule, this determination was correct. However, as we explained in Part I, the trial court's legal interpretation was incorrect. Under the proper interpretation, admitting the superseded complaint to show that Mr. Daniels had sued other health care providers was irrelevant to show when Mr. Daniels suspected the high dose radiation administered by Defendants to be the cause of his injury. Further, such evidence unfairly prejudiced Mr. Daniels because it confused the jury and was a waste of time. Therefore, in subsequent proceedings the superseded complaint cannot be admitted to show Mr. Daniels suspected other health care providers and sued them for negligence.
III MR. DANIELS DID NOT PRESERVE HIS CHALLENGE TO VOIR DIRE
134 Despite his opposition to the Defendants' motion in limine, Mr. Daniels's counsel failed to preserve Mr. Daniels's objection to the exclusion of a question regarding potential jurors' relationships to the insurance industry by failing to make a timely, specific objection that provided the court with an opportunity to rule on the issue. More importantly, Mr. Daniels did not adequately brief his preservation of this issue.
35 Under the Utah Rules of Appellate Procedure, a party must cite to where in the record an issue was adequately preserved. Utah R.App. P. 24(a)(5)(A). In this case, Mr. Daniels did not explain in his brief or reply brief when counsel preserved a challenge to voir dire. Thus, we are left to guess what Mr. Daniels's counsel's theory for preservation may be. Reviewing the record cites included in Mr. Daniels's statement of facts, we conclude that this issue was in fact not preserved for appellate review but instead Mr. Daniels stipulated to voir dire as conducted by the trial court judge.
IV. EVIDENCE OF INSURANCE MAY BE ADMITTED WHEN THE PLAINTIFF PRODUCES EVIDENCE OF A SUBSTANTIAL CONNECTION BETWEEN THE WITNESS AND THE INSURANCE PROVIDER
$86 The trial court did not abuse its discretion in excluding evidence of insurance that it found to be more prejudicial than probative. We review a trial court's exclusion of evidence for an abuse of discretion. Daines v. Vincent,
¶37 The evidence presented by Mr. Daniels was insufficient to show the possibility of bias based on insurance coverage. Utah Rule of Evidence 411 prohibits evidence of liability insurance to show that a person acted negligently but allows evidence of liability coverage to show a witness is biased or prejudiced. Mr. Daniels argues that two of the doctor witnesses in this case changed their testimony between their depositions and trial and that this may be the result of bias based on the fact that they are both insured by the Utah Medical Insurance Association, a physician-owned organization. In many jurisdictions, evidence of a witness's
€38 Applied here, we conclude that there is no evidence in the record of a substantial connection between the doctor witnesses and the Utah Medical Insurance Association; therefore, the trial court did not abuse its discretion in finding the evidence irrelevant and prejudicial. Like the witnesses in Warren, the doctor witnesses in this case held insurance policies with the same carrier as the Defendants. However, unlike the witnesses in Yoho and Evans, the witnesses did not have an employment or control relationship with the provider. Therefore, there was not a substantial connection between the witnesses and the insurance provider. Accordingly, admitting any evidence of liability insurance coverage would be irrelevant and result in prejudice because it would necessarily disclose that the defendant maintained a liability insurance policy.
V. A CLAIM FOR GROSS NEGLIGENCE MAY SUPPORT A PRAYER FOR PUNITIVE DAMAGES WHEN THE DEFENDANTS ACTS WERE BOTH KNOWING AND RECKLESS
139 The trial court erred in granting summary judgment on Mr. Daniels's punitive damage claims based on gross negligence when it relied on the proposition that contrast to a claim for punitive damages, a claim for gross medical negligence does not require allegations of willful or intentional conduct." This statement reflects a misunderstanding of the punitive damages statute. To qualify for punitive damages under the statute, an action need not be intentional but may alternatively be knowing and reckless. Utah Code Ann. § 78B-8-201(1)(a) (2008). Therefore, in certain instances, a claim for gross negligence may satisfy the statute's requirement.
¶40 "We review the district court's decision to grant summary judgment 'for correctness, granting no deference to the [district] court."" Swan Creek Vill. Homeowners Ass'n v. Warne,
¶41 Whether a claim may be the basis for punitive damages is governed by Utah Code section 78B-8-201, which allows punitive
142 To prove that a tortfeasor's actions were knowing and reckless, a party must prove that the tortfeasor knew of a substantial risk and proceeded to act or failed to act while consciously ignoring that risk. Recklessness includes conduct where "the actor kn[ew], or hald] reason to know, . of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk." Restatement (Second) of Torts § 500 emt. a (1965). The Utah Legislature added the word "knowingly" to the punitive damages statute to require "the plaintiff [to] prove actual knowledge by the defendant of the danger created by the defendant's conduct." Utah Senate Journal, 48th Leg., Gen. Sess. 705 (Feb. 21, 1989) (statement of Sen. Barlow).
148 On its face, a standard gross negligence claim partially satisfies the "knowing and reckless indifference" standard because in Utah gross negligence is equated with reckless disregard. State Tax Comm'n v. Stevenson,
{44 While all gross negligence claimants can automatically claim recklessness, only some may be able to show that a tortfeasor actually knew of the danger of his or her action or inaction, as opposed to should have known of the danger. What constitutes actual knowledge will be case specific. Diversified Holdings, L.C. v. Turner,
1 45 Because the trial court's order did not adequately address whether Mr. Daniels had adequately alleged a gross negligence claim that involved knowing conduct, we reverse and remand to the trial court to determine whether the gross negligence alleged by Mr.
VI. HEALTH CARE PROFESSIONALS OWE THEIR PATIENTS FIDUCIARY DUTIES, BUT THOSE DUTIES MAY BE ABROGATED BY STATUTE
$46 The trial court properly granted the Defendants' motion to dismiss Mr. Daniels's breach of fiduciary duty claim based on nondisclosure because the informed consent statute displaces all common law claims based on failure to inform a patient of the medical risks posed by a medical procedure. The granting of a motion to dismiss "presents a question of law that we review for correctness. Moreover, the district court's interpretation of ... statutes[ ] and the common law are questions of law that we review for correctness." Ellis v. Estate of Ellis,
1 47 Mr. Daniels argues that the trial court should not have dismissed his claim for breach of fiduciary duty because the common law duty of disclosure is broader than the duty imposed by the informed consent statute. In contrast, the Defendants urge this court to avoid imposing fiduciary duties on doctors, or at minimum, to not impose a duty of disclosure. We hold that while doctors owe patients fiduciary duties, the specific duties urged on us here are unavailable due to the informed consent statute.
148 Doctors stand in a fiduciary relationship with their patients. See Sorensen v. Barbuto,
149 Common law claims are retained unless explicitly or implicitly abrogated by statute. Utah Code Ann. § 68-3-1 (2008) ("The common law of England so far as it was not repugnant to, or in conflict with ... the constitution or laws of this state ... is hereby adopted, and shall be the rule of decision in all courts of this state."). A statute preempts a common law claim by specifically adopting a limitation or prohibition on a claim or by comprehensively addressing a particular area of law such that it displaces the common law. Bishop v. GenTec Inc.,
1 50 In this case, Utah's informed consent statute partially abrogates the fiduciary duty of disclosure.
6
The statute explicitly restricts a party's ability to obtain damages to claims satisfying the elements prescribed in the statute. Utah Code Ann. § 78B-3-406(1) (2008). In doing so, the statute abrogates all other claims for failure to disclose the risks presented by a health provider's treatment of a patient. Additionally, the statute reduces the information a health provider must disclose. For instance, under the statute, health care providers are not required to fully disclose all the risks of a health care treatment, only those risks that are "substantial and significant" and that could cause "the patient serious harm." Id. § 78B-3-406(1)(d). In contrast, the common law duty to disclose requires a physician to provide a patient with any information material to the decision process of an ordinary individual. Nixdorf v. Hicken,
T51 Of course, if a disclosure does not fall within the confines of the informed consent statute, then its fiduciary nature is retained. For example, the informed consent statute does not remove a doctor's common law fiduciary duty "to disclose to his patient any material information concerning the patient's physical condition." Nixdorf v. Hicken,
152 Mr. Daniels also claims Dr. Hayes breached the fiduciary duties of good faith and loyalty. However, we do not address these issues because they were inadequately briefed. Mr. Daniels's brief has "not provided any serious analysis of the issue," Loveland v. Orem City Corp.,
In sum, we hold that health care providers are bound by common law fiduciary duties, including a duty to disclose, except where a statute abrogates those duties. In this case, Mr. Daniels's complaint that Dr. Hayes failed to fully inform him of the risks of high dose radiation falls squarely within the confines of the informed consent statute; therefore, the fiduciary duty of disclosure does not apply. The trial court properly dismissed Mr. Daniels's claim for breach of fiduciary duty for failure to disclose the risks of high dose radiation.
VIL THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN STRIKING A SUPPLEMENT TO MR. DAN-IELSS EXPERTS DEPOSITION
154 The trial court did not abuse its discretion by granting the Defendants' motion to strike supplementation to expert testimony. In reviewing the trial court's decision to strike changes to a deposition, we recognize that "trial courts have broad discretion in matters of discovery." Gardner v. Bd. of County Comm'rs,
155 Mr. Daniels argues that the trial court should have allowed the changes to Dr. Sidney Kadish's deposition because of the provisions in Utah Rules of Civil Procedure 26(e)(1) and 80(e) that expressly allow supplementation and changes to depositions. Rule 26(e)(1) requires parties to supplement information contained in an expert's deposition if that expert is specially retained or employed for the litigation and if the information is "incomplete or incorrect." Similarly, rule 80(e) allows a deponent to make "changes in form or substance" within thirty days after the deposition. But those changes are not meant "to alter what was said under oath." Albrecht v. Bennett,
156 Here, the trial court found that the supplementation to Dr. Kadish's deposition was "new and additional testimony" and that it did not revise incorrect information or make minor changes. Instead, Dr. Kadish added to his opinion after again reviewing
VIII. A DISTRICT COURT MAY DENY AN UNTIMELY MOTION TO AMEND
157 The trial court did not abuse its discretion when it denied Mr. Daniels's second request for leave to amend his complaint because the amendment was untimely and prejudicial. We review a trial court's denial to amend pleadings for abuse of discretion. See Fishbaugh v. Utah Power & Light,
158 Rule 15(a) of the Utah Rules of Civil Procedure states that after responsive pleadings are filed, "a party may amend his pleading only by leave of court ...; and leave shall be freely given when justice so requires." Trial courts should liberally allow amendments unless the amendments include untimely, unjustified, and prejudicial factors. See Fishbaugh,
T59 In this case, the trial court found the motion to amend both untimely and prejudicial. Untimely motions are those "filed in the advanced procedural stages of the litigation process." Kelly,
T 60 Mr. Daniels argues that the trial court should have granted his motion because the Defendants were aware that Mr. Daniels might add a fraudulent concealment claim in August 2006. Although Defendants had notice, Mr. Daniels did not actually move to add fraudulent concealment until eleven months later, during which time the period for fact discovery had expired and Mr. Daniels had already amended his complaint. His motion was untimely, and reopening discovery would have caused delay. We do acknowledge, however, that the trial date was distant and that the Defendants might have had sufficient time to prepare a response to the claim of fraudulent concealment. But "we give considerable deference to the district court, as it is 'best positioned to evaluate the motion to amend in the context of the scope and duration of the lawsuit," id. 119 (quoting Smith v. Grand Canyon Expeditions Co.,
CONCLUSION
{61 We hold that the jury instructions provided by the trial court were in error because the Health Care Malpractice Act statute of limitations does not begin to run until a plaintiff discovers the negligence-including its causal event-that may have caused his injury. We therefore vacate the jury verdict. We also reverse the admission of Mr. Daniels's superseded complaint, which the trial court determined was relevant based on its erroneous interpretation of the discovery rule is also reversed. Further, upon our review of the facts presented, we see no reason to continue to bifurcate the
T62 Additionally, we hold the trial court did not abuse its discretion by excluding evidence that testifying witnesses and the Defendants were covered by the same insurance provider because the plaintiff failed to show a substantial connection between the testifying witnesses and the insurance provider. Mr. Daniels did not preserve his argument that the jury should have been screened for connections to the insurance industry. Further, we hold that gross negligence may support a claim for punitive damages when the negligence was both knowing and reckless. We also hold that a plaintiff may allege breach of fiduciary duties against his physician, so long as those claims are not abrogated by statute, such as the duty to disclose the risks inherent to a medical procedure. Finally, we hold that the district court did not abuse its discretion in granting the Defendants' motion to strike supplemental expert witness testimony and in denying a motion to amend that it found to be untimely. Therefore, we affirm in part and reverse in part, and we remand the case to the trial court for proceedings consistent with this opinion.
Notes
. Gamma West and Dr. Hayes alleged that Mr. Daniels's cancer was diagnosed as stage IV. This is an issue of fact that is not relevant to any of our holdings today; therefore, we leave it to the appropriate fact-finder to resolve.
. High dose radiation is performed by inserting catheters near the location of a cancerous tumor. Radiation is then delivered directly to the cancer-affected area to remove any remaining cancer cells.
. The parties dispute when Dr. Mintz told Daniels that he suspected external radiation could have caused the open wound. We make no finding, as this is an issue properly reserved for a {act finder.
. Mr. Daniels's original complaint included his wife, Tracey H. Daniels, as a plaintiff and a claim for loss of consortium. This claim was dismissed and is not part of this appeal.
. Mr. Daniels argued that the experimental nature of using high dose radiation to treat colon cancer together with the Defendants' failure to apprise Mr. Daniels about the risks of high dose radiation constitutes gross negligence. To the extent the harm caused by a failure to disclose relates to Mr. Daniels's agreement to undergo the treatment, this allegation must be addressed under the informed consent statute. See Part VI, infra.
. We do not address whether the informed consent statute requires health care providers to inform their patients about the experimental nature of a treatment. The parties referenced but did not argue this issue on appeal.