Weber et al v. Diamond Ranch Academy

Filing 14

MEMORANDUM DECISION granting 2 Motion to Dismiss. Signed by Magistrate Judge Dustin B. Pead on 05/15/2015. (tls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

TYLER WEBER, TRACY SARNO, JANET
YELDING, and JANAYE KEARNS,
MEMORANDUM DECISION
Case No. 2:14-cv-00884-DBP
Plaintiffs,
Magistrate Judge Dustin B. Pead
v.
DIAMOND RANCH ACADEMY, a Utah
Corporation, and Does I through X,

Defendants.
BACKGROUND
The parties consented to this Court’s jurisdiction pursuant to 28 U.S.C. § 636(c). (Dkt. 8.)
Plaintiffs Tyler Weber, Tracy Sarno, Janet Yelding, and Janaye Kearns (“Plaintiffs”) allege that
they were injured by Defendant Diamond Ranch Academy (“DRA”), which held itself out as a
therapeutic treatment center but failed to provide the treatment it offered. Presently before the
Court is DRA’s motion to dismiss. (Dkt. 2.)
ANALYSIS
DRA asserts that the Court is without subject-matter jurisdiction to hear this case because
DRA is a health care provider as defined by the Utah Health Care Malpractice Act (“UHCMA”)
and Plaintiffs failed to comply with the pre-litigation requirements of UHCMA. (Dkt. 2.) In
support of its claimed status as a health care provider, DRA provided a copy of a license from the
Utah Department of Health and Human Services indicating that DRA is licensed to provide

“RESIDENTIAL TREATMENT” for minors ages twelve to eighteen. (Dkt. 13, Ex. 1.) DRA
notes that under the Utah Administrative Code, it was required to retain medical personnel on
staff. See Utah Admin. Code r.501-19-5. The Administrative Code also states that residential
treatment programs are permitted to provide “specialized treatment, rehabilitation or habilitation
services for persons with emotional, psychological, developmental, or behavioral dysfunctions,
impairments, or chemical dependencies.” Utah Admin. Code r.501-19-2. DRA alternatively
argues that even if the Court has subject matter jurisdiction, the causes of action are
insufficiently pled.
Plaintiffs argue that DRA is not a health care provider because it represented itself as a
school rather than a psychiatric hospital. (Dkt. 9.) They urge that DRA’s license is insufficient to
establish that DRA is a health care provider under UHCMA as interpreted by Platts v. Parents
Helping Parents, 947 P.2d 658 (Utah 1997). Plaintiffs also argue that their injuries do not arise
from the provision of health care. Additionally, they argue that this case is not subject to
UHCMA because no expert testimony is required to establish causation. During the May 13
hearing, Plaintiff’s counsel clarified that Plaintiffs believe DRA is not a health care provider
because the services DRA provided were so deficient they could not be considered health care.
Plaintiffs also argued that DRA could not be a health care provider because they unlawfully
restricted the minor Plaintiffs’ movements and communications. Finally, Plaintiffs argue that
their Complaint meets the minimal standards or Rule 8.
I.

The Court lacks subject-matter jurisdiction because Plaintiffs have not complied
with UHCMA.
Two issues control whether the Court has subject-matter jurisdiction: (1) whether DRA is

a “health care provider” under UHCMA and (2) whether the alleged injuries arise from the
provision of health care. If the Court answers both questions affirmatively, Plaintiffs must
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complete pre-litigation notice and review requirements prior to filing suit. See Utah Code Ann. §
78B-3-412. Plaintiffs do not indicate they have attempted to comply with those requirements.
a. DRA is a health care provider.
Under Platts, a defendant asserting that it is a “health care provider” must demonstrate
that it provided care and services similar to those performed by health care providers enumerated
in UHCMA. Platts, 947 P.2d at 663. “This requires a factual determination by the trial court as
to the care and services rendered by [DRA], as well as to the care and services rendered by the
listed providers to which [DRA] claims similarity.” Id. Here, the factual record before the Court
includes only Plaintiffs’ Complaint and the copy of DRA’s license. 1
While DRA does not specify the enumerated health care provider to which they claim
similarity, Plaintiffs’ Complaint alleges that DRA offered or provided services similar to a
psychologist. A psychologist engages “in the practice of psychology as defined in Section 58-61102.” Utah Code Ann. § 78B-3-403(31). The practice of psychology includes “mental health
therapy . . . counseling . . . behavior analysis and therapy . . . .” Utah Code Ann. § 58-61-102(9).
The practice of psychology also includes “diagnosis and treatment of . . . alcoholism and
substance abuse . . .” Id.
Plaintiffs argue that they believed DRA was not a health care provider, but instead a
school, a camp, or a ranch; however, their Complaint undermines this argument. In their
Complaint, Plaintiffs’ allege that DRA “is a Utah licensed residential treatment center . . . .”
(Compl. ¶ 10.) Plaintiffs further allege that they expected from DRA “regular and productive
therapy/counseling and an emphasis on education and ‘getting back on the right track’ for a
healthy, drug-free, happy, successful future.” (Compl. ¶ 1.) Plaintiffs allege that DRA offered
1

The Court may consider evidence to resolve a motion under Rule 12(b)(1). Maestas v. Lujan,
351 F.3d 1001, 1013 (10th Cir. 2003). The Court takes judicial notice of DRA’s license.
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“therapy and assistance to help Tyler and Janaye navigate back to a productive life . . . with
professional counseling on a regular basis to help them renew and recenter their lives.” (Compl.
¶¶ 3, 27.) The Complaint further alleges DRA “fail[ed] to provide the highest attainable
standards of health and facilities for [minor Plaintiffs’] treatment and rehabilitation.” (Compl. ¶
36.h.) Plaintiffs also allege that DRA “fail[ed] to take appropriate measures to promote their
physical and psychological recovery and social re-integration.” (Id. ¶ 36.t.) Thus, by Plaintiffs’
own account, which must be treated as true for purposes of this motion, DRA operated as a
residential treatment facility offering and providing services similar to the UHCMA-enumerated
category of psychologist.
1. This case is subject to UHCMA irrespective of any need for expert
testimony.
Plaintiffs claim that this case is not governed by UHCMA because, unlike many medical
malpractice cases, Plaintiffs do not need expert testimony to prove their prima facie case.
Plaintiff cites several cases in which Plaintiffs attempted to establish medical malpractice
without expert testimony to establish a standard of care. E.g. Bowman v. Kalm, 179 P.3d 754
(Utah 2008) (common knowledge exception); Dalley v. Utah Valley Regional Med. Ctr., 791
P.2d 193 (Utah 1990) (res ipsa loquitur). Yet, Plaintiffs do not identify anything in these cases or
UHCMA that excuses such cases from UHCMA’s requirements. Even though these cases did not
require an expert to prove causation, the cases nonetheless refer to themselves as medical
malpractice matters. See, e.g., Bowman at 757. Based on the foregoing, Plaintiffs’ Complaint
indicates that DRA acted as a health care provider.
2. The purported regulatory violations do not prevent DRA from being
classified as a health care provider.
Plaintiffs also claimed during oral argument that they were in a lockdown facility and had
their communication with the outside world unduly restricted. This appears to be a reference to
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their briefing regarding the “Patients’ Rights” found in the Utah Administrative Code. See Utah
Admin. Code r.432-101-15. Unfortunately for Plaintiffs, they do not connect the alleged
violation of their rights as patients to some legal principle that could thus prevent DRA from
being classified as a health care provider. Indeed, the Patients’ Rights to which Plaintiffs cite
apply to health care providers. See Utah Admin. Code r.432-101-2 (“This rule applies to a
hospital . . .”); Utah Code Ann. § 78B-3-403(12) (“‘Health care provider’ includes . . . a hospital
. . . .”). Likewise, confinement is not contrary to UHCMA’s purpose. The very definition of
health care under UHCMA contemplates confinement. Utah Code Ann. § 78B-3-403(10)
(including in the definition of “health care,” acts performed “during the patient’s medical care,
treatment, or confinement.”).Thus, any argument that DRA violated the Patients’ Rights does not
militate against finding DRA to be a health care provider under UHCMA.
II.

Plaintiffs’ causes of action relate to or arise from the provision of health care
rendered by DRA.
Plaintiffs contend that their claims are “nonmedical torts” and thus are exempt from

UHCMA’s requirements. UHCMA applies to “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.” Utah Code Ann. 78B-3-403(17).
Again, Plaintiffs’ Complaint demonstrates that the alleged injuries arise from healthcare
DRA provided, or should have provided. Plaintiffs allege they expected “medical care, and
positive, professional therapy/counseling.” (Compl. ¶ 45.) Plaintiffs allege that they were harmed
by the quality or value of the services provided by DRA. (E.g. id. ¶¶ 36.h & 36.t.) Plaintiffs
attempt to avoid application of UHCMA by alleging that DRA did not provide a number of
expected services. At oral argument Plaintiffs argued that treatment can become so deficient that
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it ceases to qualify as health care. Plaintiffs could not offer any legal basis for this suggestion.
Moreover, UHCMA does not support this argument. Even a lack of treatment can form the basis
of a malpractice action. “‘Health care’ means 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.” Utah Code Ann. §
78B-3-403(10) (emphasis added). Plaintiffs were not able to offer any basis on which they
sought to recover from DRA that did not contemplate the provision (or lack of provision) of
health care. Put simply, UHCMA applies, by its explicit terms, to a situation in which a health
care provider does not render the quantum or quality of care expected.
Though not raised in the parties’ briefing, the Court is cognizant that certain claims
against a health care provider are not subject to UHCMA. See Dowling v. Bullen, 94 P.3d 915,
917–18 (Utah 2004) (holding that a wife’s alienation of affection claim against her husband’s
therapist did not arise out of the provision of health care because the plaintiff wife was not the
patient receiving health care). Dowling does not appear to change the outcome here because
Plaintiffs are clients of DRA. In short, there does not appear to be any claim that is sufficiently
unrelated to the treatment expected or provided.
a. Plaintiff’s fraud-related claims.
Plaintiffs attempt to distinguish their fraud-related claims by arguing that DRA should be
“estopped” 2 from asserting defenses under UHCMA. (Dkt. 9 at 10.) Once again, Plaintiffs’
Complaint shows that their fraud claims arise from the provision of health care. Breach of
warranty claims are expressly included in UHCMA’s description of the causes of action to which
2

The reference to estoppel is problematic. Unlike an affirmative defense like statute of
limitations, which may be limited by equitable considerations, the question raised here goes to
the Court’s subject-matter jurisdiction. Regardless of DRA’s conduct, the Court does not have the
power to hear a case in which it has no subject-matter jurisdiction.
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it applies. See Utah Code Ann. § 78B-3-403 (17). The fraud claims here are similar to a breach
of warranty claim. As discussed above, Plaintiffs allege that DRA told them it would provide
“medical care, and positive, professional therapy/counseling.” (Compl. ¶ 45.) Plaintiffs further
allege that they detrimentally relied on these representations, and as a result “did not receive the
quality care, services, and facilities paid for.” (Compl. ¶ 47 (emphasis added).) They further
allege “[t]here were really no competent health people at DRA . . . .” (Id. ¶ 30 (emphasis added).)
Thus, the fraud claims likewise relate to, or arise out of, DRA providing health care. Plaintiffs’
fraud claims are predicated upon the failure to deliver a certain quality of care and are similar in
nature to the breach of warranty claims expressly addressed under UHCMA. See Utah Code
Ann. § 78B-3-403 (17).
Based on the foregoing, this Court is without subject-matter jurisdiction over Weber’s
and Kearns’ claims because they are subject to UHCMA and Plaintiffs do not attempt to refute
DRA’s assertion that they have not provided the requisite notice under UHCMA. Based on this
conclusion, the Court does not reach DRA’s alternative argument that Plaintiffs claims are
insufficiently pled.
ORDER
Based on the foregoing, the Court GRANTS DRA’s Motion to Dismiss. (Dkt. 2.)
Plaintiffs’ action is dismissed without prejudice, pending Plaintiffs’ compliance with UHCMA.
Dated this 15th day of May, 2015.

By the Court:

Dustin B. Pead
United States Magistrate Judge

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