Utah Supreme Court Says Climbing Injury During Wilderness Hike Was Medical Malpractice Claim

The Supreme Court of the State of Utah (“Utah Supreme Court”) held in its opinion dated July 9, 2021, “We conclude that an injury sustained while climbing a rock formation during a “wilderness therapy” excursion can, depending on the circumstances, “relat[e] to or aris[e] out of health care rendered . . . by [a] health care provider.” See UTAH CODE § 78B-3-403(17). And we conclude that the injury at the heart of the claims here related to or arose out of treatment a health care provider rendered. As such, the [Utah Health Care Malpractice] Act applies to the claims the plaintiff asserts.”

The plaintiff-appellant in the underlying federal case, Jacob M. Scott (“Jacob”), was injured while rock climbing under the supervision of the defendant-appellee, Wingate Wilderness Therapy, LLC (“Wingate”). Wingate provides “wilderness therapy” to adolescents. Wingate operates as an “outdoor youth program” licensed by the Utah Department of Human Services to provide behavioral, substance abuse, and mental health services to minors. Persons enrolled in Wingate’s program live in the wilderness during their time at Wingate and participate in hiking and camping, as well as individual and group therapy. State regulations require Wingate, as an “outdoor youth program,” to employ clinical and therapeutic personnel, and require those personnel to be licensed or working under a state-certified training program. Wingate employs various professionals, including licensed therapists and psychologists, who conduct therapy sessions and create treatment plans for participants. Wingate also employs field staff who lead hiking and wilderness activities.

Jacob was a participant in Wingate’s “wilderness therapy” program. Two weeks into Wingate’s program, Jacob and six other youths went hiking, accompanied by two Wingate staff members. During the hike, the lead staff member temporarily left the group. The remaining staff member let the youth, at their request, climb a seventy-foot-tall, snow-dusted rock formation. The staff member provided no climbing gear, training, or physical assistance. Jacob and three others reached the top, but Jacob and at least one other boy found it much more difficult to climb back down. While Jacob was struggling to descend the rock formation, the lead staff member rejoined the group. Neither staff member offered Jacob any physical assistance, but one of them advised Jacob to follow a certain route down. As Jacob tried to do so, he slipped on the snow and fell approximately twenty-five feet to the ground, landing on his left knee. Jacob’s knee shattered.

Utah Health Care Malpractice Act

The Utah Health Care Malpractice Act (“Malpractice Act”) requires plaintiffs to overcome a set of hurdles before filing a “malpractice action against a health care provider.” UTAH CODE §§ 78B-3-401 through 426. In pertinent part, plaintiffs must meet three requirements: First, plaintiffs must give the prospective defendant ninety days’ notice of intent to commence the action. § 78B-3-412. Second, plaintiffs must present their case to a prelitigation panel (§ 78B-3-416(2)(a)), who determines whether the claims have “merit” or “no merit.” § 78B-3-418(2). Third, plaintiffs must file their complaint within the Act’s two-year statute of limitations, unless one of the exceptions applies. § 78B-3-404.

The Malpractice Act applies to any “malpractice action against a health care provider.” The Malpractice Act defines a malpractice action as any action against a health care provider, whether in contract, tort, breach of warranty, wrongful death, or otherwise, based upon alleged personal injuries relating to or arising out of health care rendered or which should have been rendered by the health care provider.

The Malpractice Act defines “health care” as “any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.”

The Malpractice Act defines “health care provider” as “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, physician assistant, registered nurse, licensed practical nurse, nurse-midwife, licensed direct-entry midwife, dentist, dental hygienist, optometrist, clinical laboratory technologist, pharmacist, physical therapist, physical therapist assistant, podiatric 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 counselor, practitioner of obstetrics, licensed athletic trainer, 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.”

To constitute a “malpractice action against a health care provider,” a claimant’s alleged injuries must: (1) “relat[e] to or aris[e] out of” (2) “health care,” i.e., “any act or treatment performed or furnished, or which should have been performed or furnished”: (a) “for, to, or on behalf of a patient”; (b) “during the patient’s medical care, treatment, or confinement”; and (c) by a listed “health care provider” or others “rendering similar care and services,” or their “officers, employees, or agents . . . acting in the course and scope of their employment.” § 78B-3-403(10), (12), (17).

The Utah Supreme Court stated, “the statute’s plain language does not require the “exercise of medical judgment or expertise.” This does not mean that “health care” under Utah’s Malpractice Act never requires professional expertise or judgment. It only means the Act requires what the statutory language says when read in context. And neither “health care” nor “health care provider” invariably require specialized medical expertise or a “medical license” in the narrow sense Jacob contends.”

The Utah Supreme Court further stated, “Persons and entities expressly listed in the statute are “health care providers,” as are all “others” rendering care and services “similar” to—even if not precisely the same as—that of expressly listed providers. See id. And so long as a person or entity who qualifies as a “health care provider” performs or should have performed an “act or treatment” “for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement,” then that act, treatment, or omission qualifies as “health care” under the Malpractice Act. UTAH CODE § 78B-3-403(10).”

The Utah Supreme Court stated: “Based on the plain language of the statute, we conclude that “health care” constitutes acts or treatments which were or should have been “performed or furnished”: (1) “by any health care provider”; (2) “for, to, or on behalf of a patient”; and (3) “during the patient’s medical care, treatment, or confinement.” UTAH CODE § 78B3-403(10) (emphases added).”

The Utah Supreme Court further stated: “We agree and reiterate that an injury does not “relat[e] to or aris[e] out of” health care where a health care provider’s “alleged transgressions are only tangentially related to their provision of health care services.” … [however,] [i]nterpreting the reach of the Act too narrowly would threaten to undermine the protections the Act affords health care providers. And interpreting the phrase “relating to or arising out of” as equating to “proximate cause” would do exactly that—it would narrow the potential universe of circumstances where the Act might otherwise apply. It would make little sense to constrict the Act’s reach in that way, given the Act’s goal of expediting and facilitating settlement of claims against health care providers. Further, the way the legislature designed the Malpractice Act also indicates that “relating to or arising out of” does not mean “proximate cause.””

The Utah Supreme Court held in the case it was deciding: “We agree with Wingate that it was acting as a “health care provider” and providing “health care” when Jacob was hiking and rock climbing. Contrary to Jacob’s assertion, the fact that Wingate’s field staff, and not the Therapist, directly supervised the hike does not change this conclusion … To the extent Jacob believes it is improper for Wingate’s Therapist to use “wilderness therapy” and a broad set of “wilderness experiences” as a health treatment tool, or to the extent Jacob believes it was improper for the Therapist to delegate implementation of that care to field staff, such arguments squarely challenge the Therapist’s professional judgment and thus sound in malpractice. We acknowledge that Jacob describes his claims as not based on the Therapist’s recommendation to hike or experience wilderness activities, and instead as “based on Wingate’s field staff members’ decision to allow him and others to detour from a designated hiking route to climb a dangerous rock formation unattended and without assistance.” In other words, Jacob doesn’t challenge the treatment that was prescribed, but the way that treatment was carried out or implemented. But that distinction doesn’t let his claims escape the Act’s grip. Improper implementation of a health care treatment is still “health care,” because the Act defines “health care” to include not only affirmative acts, but also those acts or treatments that “should have been performed or furnished.” UTAH CODE § 78B-3-403(10).”

“Jacob claims that Wingate negligently implemented and negligently supervised the group hike—which was part of Jacob’s treatment plan—by allowing Jacob to participate in an unplanned and unsafe rock climbing activity, which ultimately resulted in Jacob’s knee injury. These all “relat[e] to” and “aris[e] out of” Wingate’s provision of mental health care because they occurred during Jacob’s treatment. That is, the climbing injury arises or originates from Wingate’s staff’s implementation of the wilderness therapy treatment plan the Therapist created for Jacob—a treatment plan that called for Jacob to hike and have wilderness experiences.”

“That Wingate’s staff may have negligently implemented Jacob’s treatment does not mean that negligent treatment escapes the Act’s grip. This is precisely what the Act ensnares. A “malpractice action against a health care provider” applies to tort claims against any health care provider for “injuries relating to or arising out of health care rendered or which should have been rendered by the health care provider.” UTAH CODE § 78B-3-403(17) (emphasis added). Likewise, “health care” applies not only to affirmative acts or treatments, but also to those “which should have been performed or furnished.” Id. § 78B-3-403(10) (emphasis added).”

” Jacob’s treatment plan included not only traditional notions of mental health counseling, but also testing physical skills in the wilderness. Taking this treatment plan and its purported therapeutic value on its face, we conclude that Jacob’s rock climbing injuries reasonably “relat[e] to or aris[e] out” the health care Wingate was providing.”

The Utah Supreme Court concluded: “An injury sustained while climbing a rock formation during a “wilderness therapy” excursion operated by the defendant “relat[es] to or aris[es] out of health care rendered . . . by a health care provider” within the meaning of the Act, where the defendant is or employs a health care provider who prescribed hiking, wilderness experiences, and learning outdoor survival skills as part of the plaintiff’s therapeutic treatment plan, that plan was carried out by the defendant’s staff, and the plaintiff’s injuries occurred during the plan’s execution. Such is the case here and the Act applies to Jacob’s claims.”

Source Scott v. Wingate Wilderness Therapy, LLC, 2021 UT 28.

If you or a loved one may have been injured as a result of medical malpractice in Utah or in another U.S. state, you should promptly find a Utah medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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This entry was posted on Thursday, August 5th, 2021 at 5:24 am. Both comments and pings are currently closed.

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