Lois Rebecca DAY, Plaintiff and Appellant, v. Steven MEEK, M.D., General Hospitals of Galen, Inc., a Utah corporation, dba Davis Hospital, and Does I-X, Defendants and Appellees.
No. 970562
Supreme Court of Utah
March 30, 1999
1999 UT 28
¶21 The requirement for a written agreement is not offensive since it simply furnishes proof for eligibility for the exemption. The requirement that a specific room must be identified ensures that a person will be occupying that room for thirty days or more, just as that person would in renting a home or apartment. The requirement that the room must be billed at a specified monthly rate again attempts to put the arrangement on par with that of a person renting or leasing an apartment or house for thirty days or more who are typically billed a monthly rate. Thus, I find nothing in the rule which narrows the exemption granted by the legislature. The rule simply ensures that the exemption will be given only in accordance with the legislative intent. The rule prevents the exemption from being utilized in situations other than where the legislature intended it to apply.
¶22 Justice RUSSON concurs in Chief Justice HOWE‘s dissenting opinion.
Philip R. Fishler, R. Scott Williams, Catherine M. Larson, Salt Lake City, for Meek
David Slagle, Salt Lake City, for Davis Hospital
RUSSON, Justice:
¶1 Plaintiff Lois Rebecca Day appeals from a summary judgment dismissing her malpractice action. According to Day‘s complaint, defendants Dr. Stephen Meek and Davis Hospital negligently left a sponge inside her body after surgery. The district court held that the relevant statute of limitations required Day to bring notice of her action within one year of discovery1 of the malpractice. Because Day filed notice more than one year after she discovered the sponge, the court ruled that her claim was time-barred by the statute. Because we conclude the district court improperly construed the statute of limitations, we reverse.
BACKGROUND
¶2 On or about September 28, 1994, Day underwent surgery to remove an ovarian cyst. Her gynecologist, Dr. Meek, performed the surgery at Davis Hospital. Thereafter, Day complained that she was experiencing unusual pain and discomfort. She returned to Dr. Meek for follow-up visits on several occasions. On December 22, 1994, Dr. Meek discovered a sponge in Day‘s vaginal cavity and removed it. A few days later, Day was admitted to the University of Utah Hospital, where doctors determined that Day was suffering from toxic shock syndrome. The admitting form at University Hospital indicated that Day was aware Dr. Meek had removed the sponge on the 22nd.2
¶3 Day filed her notice of intent to commence action on January 8, 1996, slightly more than one year after she discovered Dr. Meek had left a sponge inside her. The Division of Occupational and Professional Licensing conductеd a panel hearing and issued a certificate of compliance with the prelitigation review requirements of
¶4 After Day commenced her suit in the district court, Dr. Meek and Davis Hospital defended by asserting that
DISCUSSION
¶5 This case turns on our interpretation of
(1) No malpractice action against a health care provider may be brought unless it is 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, but not to exceed four years аfter the date of the alleged act, omission, neglect or occurrence, except that:
(a) In an action where the allegation against the health care provider is that a foreign object has been wrongfully left within a patient‘s body, the claim shall be barred unless commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered, the existence of the foreign object wrongfully left in the patient‘s body, whichever first occurs; and
(b) In an action where it is alleged that a patient has been prevented from discovering misconduct on the part of the health care provider because that health care provider has affirmatively acted to fraudulently conceal the alleged misconduct, the claim shall be barred unless commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence, should have discovered the fraudulent concealment, whichever first occurs.
¶6 “When we interpret statutes, our primary goal is to give effect to the legislature‘s intent in light of the purpose the statute was meant tо achieve.” Evans v. State, 963 P.2d 177, 184 (Utah 1998) (citing Sullivan v. Scoular Grain Co. of Utah, 853 P.2d 877, 880 (Utah 1993)). Before treating any other source, we rely first on the statute‘s plain language. See Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1112 (Utah 1991). If, on the other hand, “we find a provision ambiguous, which causes doubt or uncertainty as to its meaning or application, we must analyze the act in its entirety and ‘harmonize its provisions in accordance with the legislative intent and purpose.‘” Evans, 963 P.2d at 184 (quoting Beynon v. St. George-Dixie Lodge #1743, 854 P.2d 513, 518 (Utah 1993)). “Statutory language is ambiguous if it can reasonably be understood to have more than one meaning.” Evans, 963 P.2d at 184.
¶7 Dr. Meek and Davis Hospital assert that subsection (a) functions as a distinct statute of limitations applicable to all cases of malpractice involving foreign objects left within a patient‘s body. They maintain that subsection (a)‘s one-year limitations period bars Day‘s claims because she filed her notice of claim slightly more than a year after she discovered the cause of her injury. Day, however, contends that subsection (a) does not operate as a distinct period of limitation,
¶8 Thus, the parties assert differing views of subsection (a) as it relates to the preceding paragraph in section 78-14-4(1). The first paragraph sets forth two time limitations for bringing suit for medical malpractice: a general two-year statute оf limitations (running from the time of discovery), and a four-year repose period (running from the time of the alleged negligence). Subsection (a) is then denominated as one of two exceptions to one or both of the foregoing.
¶9 When viewed in isolation, it is not immediately clear from the text or structure how we should construe the import of the words “except that.” There are three conceivable formulations: Subsection (a) can be read in conjunction with (1) the two-year period only, (2) both the two- and the four-year periods, or (3) the four-year period only.
¶10 Under the rule of cоnstruction known as the “last antecedent” rule, the first formulation is the least plausible. As noted in Salt Lake City v. Salt Lake County, 568 P.2d 738, 740 (Utah 1977), “[Q]ualifying words and phrases are generally regarded as applying to the immediately preceding words, rather than to more remote ones.” Id. In this case, the qualifying words are “except that,” which are immediately preceded by the discussion of the four-year statute of repose. Thus, application of the “last antecedent” rule discourages the interpretation that would apply the foreign objects exception only to the more remote two-year general limitations period.4
¶11 The “last antecedent” rule, however, does not aid in choosing between the other two conceivable formulations. The court in Salt Lake City went on to state that the “rule is not necessarily limited to the one term immediately preceding, but if there are several preceding terms of the same character, it may modify all such terms, if the natural and sensible meaning of the wording so requires.” 568 P.2d at 741. The primary question before us is whether subsection (a) is an exception to the four-year period only or an exception to both the two- and the four-year periods. The last antecedent rule could be employed to defend either formulation. We examine the two alternatives in turn.
¶12 If viewed as an exception to both the two- and the four-year periods, the statute would read as follows:
(1) No malpractice action against a health care provider may be brought unless it is commenced within two years after [discovery] but not to exceed four years after the date of the alleged act, omission, neglect or occurrence, except that [i.e., except that the two-year limitation period and the four-year repose period do not apply in the following cases; instead]:
(a) In an action where the allegation against the health care provider is that a foreign object has been wrongfully left within a patient‘s body, the claim shall be barred unless commenced within one year after the plaintiff or patient discovers....
¶13 If, on the other hand, subsection (a) is read only in conjunction with the four-year repose period, a different result obtains. If subsection (a) is not an exception to the two-year general limitation on medical malpractice claims, then it becomes operative only when the four-year statute of repose would otherwise bar recovery. This reading views the operative language as follows:
(1) No malpractice action against a health care provider may be brought unless it is commenced within two years after [discovery] ... but not to exceed four years after the date of the alleged act, omission, neglect or occurrence, except that [i.e., except that beyond the four-year period]:
(a) In an action where the allegation against the health care provider is that a foreign object has been wrongfully left within a patient‘s body, the claim shall be barred unless commenced within one year after [discovery]....
Id. (as altered to reflect hypothetical).
¶14 In other words, the first paragraph of section 78-14-4(1) contains the general rule for all malpractice actions: they must be brought within two years of discovery but not after four years from the occurrence of the malpractice. Under this reading, the exceptions that follow only apply to claims filed beyond the four-year repose period. Those two exceptions are foreign object cases and fraudulent concealment cases.5
¶15 Both of the proposed constructions of the statute are textually plausible. The language “except that” is subject to more than one reasonable interpretation. A reasonable and disinterested reader could assume from the text that the two-year period is the general rule fоr medical malpractice actions, “except that” a malpractice claim consisting of injury from a foreign object left inside a patient is subject to a one-year period. On the other hand, a reasonable person could also view the statute as requiring that all cases be brought within four years of the negligence, “except that” beyond the four-year period a case may be brought within one year of discovery if the injury was caused by a foreign object left within the body. Because the existence of two plausible interpretations creates an initiаl doubt or uncertainty as to the meaning of the statute, we must “analyze the act in its entirety and ‘harmonize its provisions in accordance with the legislative intent and purpose.‘” Evans, 963 P.2d at 184 (quoting Beynon, 854 P.2d at 518).
¶16 The parties concede that there was no pertinent legislative discussion concerning the scope of subsection (a). Nor does the statutory history provide any substantial illumination on the matter. Nevertheless, by viewing the statute as a whole, the legislative intent becomes more clear. Although subsection (b) is not at issue in this appeal, it provides critical contextual assistance in our interpretation of the scope of subsection (a).6
¶17 Although there is textual ambiguity as to the scope of subsections (a) and (b), we can draw one clear structural conclusion about them: the scope of both subsections is the same. They are listed in series as equal enumerated exceptions to one or both of the provisions of the first paragraph of
¶18 As with subsection (a), subsection (b) is listed as an exception to one or both of the provisions of the first paragraph of subsection (1). Subsection (b) provides a one-year limitations period for malpractice actions where fraudulent concealment is alleged. While there is at least an arguable basis for shortening the limitations statute for foreign object cases during the pendency of the four-year repose period,7 it makes no sense to require a shorter limitations period for cases involving fraudulent concealment within the four-year repose period. Such a rule would reward physicians who conceal their wrongful acts. If subsections (a) and (b) are applicable within the first four years from the occurrence of the negligence, plaintiffs who discover fraudulent concealment at any time less than three years from that occurrence would have a shorter time within which to bring suit than those plaintiffs who are not victims of concealment. There would be no rational basis for the legislature to imposе such a rule.
¶19 Take for example the case of a plaintiff who presents a potential claim of malpractice to an attorney more than one year after discovering the fraudulent concealment but still within the two- and four-year limits. To avoid the one-year limitations bar of subsection (b), that plaintiff‘s attorney could not plead fraudulent concealment in the complaint without barring the plaintiff‘s case. The absurdity of such a situation becomes even more palpable if we realize that health care providers accused of malpractice could conceivably assert their own fraudulent concealment as a bar to the suit, thus perversely converting their own misconduct into an affirmative defense. The legislature could not have intended such a result.
¶20 Indeed, the case of Jensen v. IHC Hospitals, Inc., 944 P.2d 327, 336 (Utah 1997), implicitly assumed that the two-year period was applicable within the repose period instead of the one-year term designated by subsection (b). The one-year limitation on cases involving fraudulent concealment makes sense only if it comes into play after the expiration of the four-year repose period, which would otherwise cut off all cаuses of action. Cf. Chapman v. Primary Children‘s Hosp., 784 P.2d 1181, 1184-85 (Utah 1989) (holding
¶21 Moreover, this interpretation is sensible in light of prior Utah cases that illustrated the potential of long-term delays in discovering foreign objects and the obvious unfairness of unreasonably barring claims that have been fraudulently concealed. See, e.g., Chapman, 784 P.2d at 1184-85 (fraudulent concealment); Nixdorf v. Hicken, 612 P.2d 348, 351 (Utah 1980) (foreign object); Christiansen v. Rees, 20 Utah 2d 199, 201-02, 436 P.2d 435, 436 (1968) (foreign object).
¶22 In sum, we hold that
¶23 Associate Chief Justice DURHAM, Justice STEWART, and Justice ZIMMERMAN concur in Justice RUSSON‘s opinion.
FREDERICK, District Judge, dissenting:
¶24 I dissent. As noted in the majority opinion, “[w]hen we interpret statutes, our primary goal is to give effect to the legislature‘s intent in light of the purpose the statute was meant to achieve.” Evans v. State, 963 P.2d 177, 184 (Utah 1998) (citing Sullivan v. Scoular Grain Co. of Utah, 853 P.2d 877, 880 (Utah 1993)). Before turning to any other source, the statute‘s plain language must be examined. See Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1112 (Utah 1991). Indeed, the words of a statute are to be read literally unless unreasonably confused or inoperable. See Horne v. Horne, 737 P.2d 244 (Utah Ct.App.1987).
¶25 The majority opinion, based upon a finding of textual ambiguity, interprets the applicable limitations period under
¶26 Specifically, the relevant parts of section 78-14-4(1)(a) read as follows:
(1) No malpractice action against a health care provider may be brought unless it is 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, but not to exceed four years after the date of the alleged act, omission, neglect or occurrence, except that:
(a) In an action where the allegation against the health care provider is that a foreign object has been wrongfully left within a patient‘s body, the claim shall be barred unless commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered, the existence of the foreign object wrongfully left in the patient‘s body, whichever first occurs[.]
¶27 As recognized by the majority opinion, the first paragraph sets forth two time limitations on bringing suit for medical malpractice: a general two-year statute of limitations (running from the time of discovery), and a four-year repose period (running from the time of the alleged negligence). Subsection (a) is merely one of two exceptions to the foregoing. Although the majority found the words “except that” unclear and turned to
¶28 Relying on the literal wording of the statute, it is clear that paragraph (1) governs, except in situations where subsection (a) is applicable. In other words, a plaintiff who presents a case of malpractice has two years from discovery of the injury or four years after the date of the act to bring the cause of action, whichever comes first—“except that” where the allegation against the health care provider is that a foreign object has been wrongfully left in a patient‘s body, the plaintiff has one year after discovery to assert a claim.
¶29 The majority concludes that such a rule rewards physicians who are negligent or conceal their wrongful acts by decreasing the amount of time in which a litigant may file an action. However, this is not necessarily true. Indeed, the plaintiff who suffers an injury under subsection (a) may have less than а two-year time frame to bring his or her claim; however, the same plaintiff who does not and could not through reasonable diligence discover the existence of the foreign object could conceivably have an unlimited time in which to assert his or her cause of action under the literal wording of the statute.
¶30 Although subsection (b) is not at issue in this case, since it was considered in the majority opinion, it will be addressed only to note that the same analysis would apply to it as well. Specifically, in an action where it is alleged that a patient has been prevented from discovering misconduct on the part of the health care provider due to fraudulent concealment, the patient would have one year, possibly extending indefinitely, depending upon the particular circumstances of the case, to file his or her action.
¶31 While the majority finds that a literal reading of the statute leads to harsh and unreasonable results, the contrary is in fact true. Granted, there will be those litigants who quickly discover their alleged injury and are required, under the statute, to respond within one year of the discovery. However, for many other plaintiffs, the statute‘s exceptions will result in а preservation of their claims well beyond the strict two- and four-year limitations.
¶32 Regardless of what result would be achieved, Utah law requires that the statute‘s plain language be the first source of inquiry in all cases of statutory interpretation. As noted in the dissent by Justice Stewart in In re Young, 361 Utah Adv. Rep. 26, 976 P.2d 581, 1999 WL 23427 (Jan. 22, 1999), this rule “‘prevents judges from “finding” an ambiguity in even the most plain language of a constitutional or statutory provision as an excuse to search the legislative history in an attempt to justify an interpretation they prefer.‘” Id. at 37, 976 P.2d at 598, 1999 WL 23427 (quoting Salt Lake City v. Ohms, 881 P.2d 844, 850 n. 14 (Utah 1994)). There being no textual ambiguity in this case, this is where the analysis must end. Accordingly, I would affirm.
Having disqualified himself, Chief Justice HOWE does not participate herein; District Judge J. DENNIS FREDERICK sat.
J. DENNIS FREDERICK
DISTRICT JUDGE
Notes
An action against a [health care provider] for professional negligence or rendering professional services without consent [must be brought within] two years after the date of injury or two years after the plaintiff discovers, or through the use of reasonable diligence, should have discovered the injury, whichever occurs later, but not to exceed ten years in any instance, except if any [health care provider] brings a timely action against a person for services rendered, such person may assert a counterclaim for professional negligence or for rendering professional services without consent аlthough such cause of action against the [health care provider] is otherwise barred by the provisions of this section.1971 Utah Laws ch. 212, § 1 (emphasis added). This provision was codified at Utah Code Ann. § 78-12-28 until it was replaced in 1976 with the current version, codified at