In its Order and Decision filed on July 19, 2023, the United States Court of Appeals for the Tenth Circuit (Federal Appellate Court”) affirmed summary judgment entered in favor of the Utah medical malpractice defendants because the plaintiffs failed to file within the two-year medical malpractice statute of limitations set forth in the Utah Health Care Malpractice Act (UHCMA).

Utah Health Care Malpractice Act (UHCMA)

Under the UHCMA, a malpractice action must be “commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury.” Utah Code § 78B3-404(1) (West 2010). According to the Utah Supreme Court, legal injury for purposes of the UHCMA refers to “(1) the physical injury, (2) the causal event of the injury, and (3) that negligence (a breach in the standard of care) caused the injury.” In other words, “legal injury” for UHCMA claims means “both ‘discovery of injury and the negligence which resulted in the injury.’”

When it comes to what it means to become aware of a legal injury under the UHCMA, the Utah Supreme Court has set forth a kind of continuum, where “actual knowledge of negligence is not required,” but “mere suspicion” of having received negligent medical treatment is not enough. Establishing a middle ground, the Utah Supreme Court has explained, “All that is necessary [for the statute of limitations to accrue] is that the plaintiff be aware of facts that would lead an ordinary person, using reasonable diligence, to conclude that a claim for negligence may exist”; the UHCMA’s statute of limitations begins to run “the moment when a patient first has knowledge or constructive knowledge of the facts underlying their malpractice claim—in other words, their legal injury.”

The UHCMA’s two-year statute of limitations is subject to statutory tolling. When the plaintiffs were pursuing their malpractice action, the UHCMA still had a “certificate of compliance” requirement. §§ 78B-3-412(1)(b), 416(2)(a). Under that procedure, filing a request for prelitigation panel review—the first step in obtaining a certification of compliance—tolled the two-year statute of limitations for filing a lawsuit until the later of:
 60 days following the issuance of a certificate of compliance,
 60 days following an opinion by the prelitigation panel, or
 180 days after the filing of the request for prelitigation panel review.

Background Facts

On September 4, 2014, Plaintiff Jeffrey Robertson experienced severe abdominal pain and sought treatment at the Utah Valley Regional Medical Center’s (UVRMC) emergency department. A CT scan revealed acute pancreatitis and gallstones. Mr. Robertson was admitted to the Intensive Care Unit (ICU). He remained at UVRMC for two months. Between September and October 2014, Dr. Craig Cook—a general surgeon—operated on Mr. Robertson multiple times to remove necrotic material and abscesses, and to place abdominal drains.

On March 9, 2015, Dr. Legrand Belnap performed surgery on Mr. Robertson to remove the necrotic portion of Mr. Robertson’s pancreas and to drain the abscesses. According to Mr. Robertson, after the operation that same day, Dr. Belnap said the previous physicians had performed the wrong surgery on Mr. Robertson—they should have removed his entire pancreas, not just ten percent of it.

The district court concluded Providers “marshal[ed] significant evidence that [the Robertsons] became aware of their legal injury . . . during their conversation with Dr. Belnap on March 9, 2015.” The Federal Appellate Court agreed: “On de novo review, we are convinced the district court correctly determined—primarily based on the Robertsons’ own deposition testimony—the Robertsons discovered their legal injury on March 9, 2015—the day Dr. Belnap performed emergency surgery on Mr. Robertson … Based on the Robertsons’ deposition testimony, the district court correctly determined Providers demonstrated there was no genuine dispute that, on March 9, 2015, the Robertsons discovered their legal injury—that is, they had been made “aware of facts that would lead an ordinary person, using reasonable diligence, to conclude that a claim for negligence may exist” … The summary judgment burden then shifted to the Robertsons, as nonmovants, to “set forth specific facts showing that there is a genuine issue for trial” … The Robertsons failed to meet this burden.”

Source Robertson v. IHC Health Services, Inc., No. 22-4046.

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