September 6, 2019

The Supreme Court of the State of Utah (“Utah Supreme Court”) held in its opinion filed on August 15, 2019 that despite the Utah medical malpractice plaintiff’s argument that a notice of claim she filed in September 2016, regarding the medical services she received no later than 2013, is timely because it was not until 2016 that she learned that her allegedly negligent surgeon was a University of Utah School of Medicine professor (the University is a State entity for purposes of the Utah Governmental Immunity Act (“UGIA”): “The UGIA does not, however, require actual notice that an individual may have a claim against a State employee before the one-year filing period begins to lapse. Inquiry notice is sufficient to start the clock running. And in this case, that clock had long been running and the one-year filing period had expired well before [the plaintiff] filed her notice of claim.”

The Underlying Facts

On October 30, 2013, the plaintiff had surgery at LDS Hospital. The plaintiff alleges that during the surgery, the surgeon injured her colon. As a result of the injury and the complications that followed, the plaintiff underwent additional procedures and several months of intensive wound care.

On October 2, 2014, pursuant to the Utah Health Care Malpractice Act, UTAH CODE § 78B-3-401 et seq., which is a statutory scheme separate and apart from the UGIA, the plaintiff served a notice of intent to commence action on several entities including University of Utah Health Care, the surgeon, and LDS Hospital. In that notice, the plaintiff identified the defendant surgeon as “a gynecological oncologist who works at OB-GYN Avenues Clinic, which is part of University of Utah Health Care.”

The plaintiff subsequently filed her Utah medical malpractice action against the defendant surgeon, who moved to dismiss on the basis that he was employed by the University and entitled to immunity under the UGIA. The plaintiff did not oppose the motion, and the claims against the defendant surgeon were dismissed.

In September 2016, the plaintiff filed a notice of claim informing the State of Utah of her potential claims against the University and then filed a lawsuit against the University, asserting claims of negligence and loss of consortium predicated on the services the surgeon provided and the surgery he performed.

The University moved to dismiss, arguing in part that the plaintiff had failed to serve a notice of claim on the State of Utah within the one-year time period the UGIA requires (i.e., that by October 2014, the plaintiff was aware of facts that would lead an ordinary person, using reasonable diligence, to conclude that a claim for negligence may exist).

The district court dismissed the case with prejudice, ruling that the plaintiff’s “consultation with a physician at a University clinic [was] sufficient to trigger notice inquiry that the physician she was seeing [might] be a state employee and that she [might] have a claim against the State of Utah.” Additionally, “because at least one of the claims alleged . . . involve[d] a consultation that occurred at a University clinic, [the plaintiff] knew, at a minimum, that she had a medical malpractice claim involving a claim that occurred at a University clinic.” Moreover, the plaintiff had not demonstrated that she exercised reasonable diligence in ascertaining whether she had a claim against an entity or employee of the State. The plaintiff appealed.

Utah Supreme Court Opinion

The Utah Supreme Court stated: “the UGIA is a deliberately stingy piece of legislation that outlines strict requirements a plaintiff must satisfy to file suit against a State entity. The UGIA requires a plaintiff to give notice of her claim to the State within one year of the date the plaintiff knew, or through the exercise of reasonable diligence should have known, that she had a claim against a State entity or employee. [The plaintiff] argues that her notice of claim was timely because she filed it within a year of when she knew or should have known that she had a claim against the University. The district court disagreed and dismissed her case.”

The Utah Supreme Court held: “We side with the district court. Although [the plaintiff’s] surgery took place at LDS Hospital, [the plaintiff] had consulted with her surgeon at a University clinic multiple times and received an itemization from the University for his services. This was sufficient information to put a reasonable person on notice that her claim might be against the State. And because [the plaintiff] had reason to inquire long before she filed her notice of claim, her notice was untimely. [The plaintiff’s] arguments to the contrary, including those based on the doctrine of res judicata and the Open Courts provision of the Utah Constitution, are without merit. Accordingly, we affirm.”

Source Amundsen v. University of Utah, 2019 UT 49.

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