Dayley v. USA et al
Filing
97
MEMORANDUM DECISION and ORDER granting 68 IHC Defendants' Motion for Summary Judgment; finding as moot 66 Motion to Exclude; finding as moot 67 Motion to Exclude. Signed by Judge Dee Benson on 3/27/2018. (blh)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
JARED K. DAYLEY,
Plaintiff,
MEMORANDUM DECISION AND
ORDER
v.
THE UNITED STATES OF AMERICA;
INTERMOUNTAIN HEALTH CARE, INC.,
d.b.a. INTERMOUNTAIN SPRINGVILLE
CLINIC; DON L. BOWCUT, M.D.; and
DOES I-X,
Case No. 2:16-cv-249-DB
Judge Dee Benson
Defendants.
Before the Court is a motion for summary judgment brought by Defendants
Intermountain Health Care, Inc. d.b.a. Intermountain Springville Clinic and Don L. Bowcut,
M.D. (collectively “the IHC Defendants”). [Dkt. 68]. The motion has been fully briefed and a
hearing was held before the Court on March 14, 2018. At the hearing, Plaintiff Jared K. Dayley
was represented by Lena Daggs and Todd Walquist. The IHC Defendants were represented by
James Burton. The United States of America was represented by John Mangum and Jeffrey
Nelson. Based on the parties’ written and oral arguments and on the relevant facts and the law,
the Court enters the following Memorandum Decision and Order.
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BACKGROUND
On December 22, 2005, Mr. Dayley visited the Intermountain Springville Clinic, a walkin urgent care clinic, because he was experiencing fever, malaise, left flank pain and blood in his
urine for two to three days. [Dkt. 69-1]. Defendant Dr. Bowcut examined Mr. Dayley and
determined that he had dark tea-colored urine and possible glomerulonephritis. [Id.]. Dr. Bowcut
ordered the following tests be performed on Mr. Dayley that day: a CBC (complete blood count),
CMP (comprehensive metabolic panel), ASO (strep test), CRP-reactive protein tests), CT of
abdomen and UA (urinalysis) with micro. [Id.]. Mr. Dayley left the clinic and returned the
following day. He spoke to a nurse who reported to him that the test results they had received
“were okay other than suspicious for mono and dehydration.” [Id.]. Mr. Dayley told the nurse
that he was still feeling ill. [Id.]. The nurse encouraged him to drink fluids and said they would
contact him with the rest of the test results once they received them. [Id.]. She said he should
expect to come in for follow up testing. [Id.].
Mr. Dayley’s test results showed his creatinine level to be 1.6, above normal. [Dkt. 69-4].
An elevated creatinine level is a potential indicator of kidney problems. [Dkt. 69-5]. His
glomerular filtration rate (GFR), which is used to detect kidney disease, was 54, below the
normal level of 60. [Dkt. 69-4]. A low GFR over time can indicate chronic kidney disease.
[Dkt. 69-5]. A CT scan of his abdomen was normal. [Dkt. 69-1].
On December 29, 2005, at Dr. Bowman’s instruction, Nurse Linda Fuller telephoned Mr.
Dayley to suggest he come back for repeat tests the following week. [Dkt. 69-1]. Mr. Dayley told
her that he was feeling better. [Id.]. He said he did not have health insurance and asked if there
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was “anything specific about coming back.” [Id.]. On December 30, 2005, Nurse Fuller notified
Mr. Dayley that according to Dr. Bowcut, if he was feeling better and the “urine is looking
better” follow up “may not be essential.” [Id.]. Otherwise, they needed “to make certain that his
kidneys were not in danger.” [Id.].
There is a disputed issue of fact as to what Mr. Dayley understood from Nurse Fuller
about the need for him to follow up or receive further testing. [Dkt. 68, 88]. Mr. Dayley believed
that his condition had improved and that if he no longer had blood in his urine, it was not
necessary to obtain follow up lab work. [Dkt. 89-5]. Mr. Dayley did not follow-up with the
Springville Clinic or a primary care physician. [Id.].
In July, 2011, Mr. Dayley visited a voluntary care clinic for treatment of a fractured jaw
and chronic fatigue. [Dkt. 15 ¶48]. The attending physician ordered a blood test. [Dkt. 15 ¶49].
The test results revealed a creatinine level of 1.9, marked with an “H” indicating high. [Dkt. 15
¶51]. The lab also revealed a GFR level of 41, marked with a “L” indicating low. [Dkt. 15 ¶53].
Mr. Dayley received a letter from the clinic requesting that he come back to discuss the test
results and the potential need for therapy and urinary monitoring. [Dkt. 15 ¶56]. Mr. Dayley did
so and was told he had hyperlipidemia and was advised to eat a low fat diet and exercise. [Dkt.
15 ¶60]. He alleges he was never informed of his high creatinine levels or problems with his
kidneys and that receiving therapy and urinary monitoring were never discussed. [Dkt. 15 ¶6265].
In 2014, Mr. Dayley visited Grandview Family Medical and was diagnosed with end
stage kidney failure [88, 89-9]. His condition at that time suggested that he had suffered from
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glomerulonephritis for at least nine years. [88, 89-6].
Mr. Dayley submitted a notice of intent to commence legal action on July 23, 2015. [Dkt.
68-13]. He filed his original complaint on March 29, 2016. [Dkt. 2]. The IHC Defendants seek
dismissal from this action for two independent reasons. First, they contend that Mr. Dayley’s
claims are barred by the applicable statute of repose. Alternatively, they argue that their medical
treatment of Mr. Dayley met the required standard of care. [Dkt. 68].
Mr. Dayley opposes the motion, asserting that this action is timely because the continuing
course of treatment doctrine tolled the statute of repose. Alternatively, Mr. Dayley argues that
the statute of repose is unconstitutional under both the United States and Utah constitutions.
[Dkt. 88].
SUMMARY JUDGMENT STANDARD
Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The Court must “examine the factual record and reasonable inferences therefrom in the
light most favorable to the party opposing the motion.” Lozez v. LeMaster, 172 P.3d 756, 759
(10th Cir. 1999).
DISCUSSION
Utah Code §78B-3-404 sets forth the applicable statute of repose for medical malpractice
actions in Utah:
A malpractice action against a health care provider shall be 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,
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omission, neglect, or occurrence.
It is undisputed that Mr. Dayley was treated at the Springville Clinic on December 22,
2005 and that he did not receive further treatment from Dr. Bowcut or the clinic after December,
2005. The last contact he had with the clinic was his telephone conversation with Nurse Fuller
on December 30, 2005. Applying the four year deadline contained in the statute, the last date
upon which Mr. Dayley could timely file his notice of intent to sue would be December 30, 2009.
It is undisputed that he did not file his notice of intent to sue until July 23, 2015.
Mr. Dayley argues that notwithstanding these undisputed facts, his claims against the IHC
Defendants are timely because the statute of repose was tolled by the continuing course of
treatment doctrine.
A. THE CONTINUING COURSE OF TREATMENT DOCTRINE
The statute of repose bars an action that is commenced more than four years after the date
of the alleged act, omission, neglect, or occurrence. Utah Code §78B-3-404(1). Utah courts
have recognized that where properly plead, the continuous course of treatment doctrine can toll
the statute of limitations. See Harper v. Evans, 185 P.3d 573 (Utah App. 2008). Under this
doctrine, where a patient is injured by a course of continuing negligent treatment by a health care
provider, the cause of action does not accrue until the date of the final negligent act. Id. Mr.
Dayley argues that continuing negligent treatment can be demonstrated by a defendant’s
continuing failure to report to the plaintiff the true nature of the defendant’s findings and
diagnosis. Witt v. St. Vincent’s Med. Ctr., 746 A.2d 753, 757 (Conn. 2000).
Here, Mr. Dayley argues that the IHC Defendants knew that his lab results were
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significant and indicated abnormal kidney function and that it was possible that he had
glomerulonephritis. Yet, they failed to provide him an accurate and complete picture of his
kidney function at the time, which he relied on by not obtaining follow up medical treatment for
years following his December, 2005 visit to the Springville clinic. Mr. Dayley contends that the
IHC Defendants had an ongoing duty to correctly inform him of the significance of his lab results
and that their alleged failure to do so constituted a continuing act of negligent care on their part
which tolled the statute of repose until Mr. Dayley was diagnosed with kidney failure in 2014 and
only then learned that his test results had indicated possible abnormality in 2005. Mr. Dayley
asserts that there are at least disputed issues of material fact as to whether the IHC Defendants
had a continuing duty that preclude summary judgment.
The IHC Defendants allege that the continuing course of treatment doctrine does not
apply to this case because it is undisputed that Mr. Dayley did not seek treatment from Dr.
Bowcut at anytime after December 2005. Where no ongoing physician-patient relationship
exists, or when the defendant is not engaged in an ongoing course of treatment or monitoring that
was explicitly anticipated by both parties even after the termination of such relationship, the
continuing treatment doctrine does not apply. Martinelli v. Fusi, 963 A.2d 640, 652 (Conn.
2009); Witt, 746 A.2d at 757. “When a plaintiff does not seek further treatment from a particular
defendant, that defendant has ceased to provide any such treatment, and there is no physicianpatient relationship to protect.” Martinelli, 963 A.2d at 652. “The policy underlying the
continuous treatment doctrine seeks to maintain the physician/patient relationship in the belief
that the most efficacious medical care will be obtained when the attending physician remains on
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a case from onset to cure.” Rosata v. Maxcardo, 844 A.2d 893, 898 (Conn. App. 2004). By
contrast, “an urgent or stat care physician, who is treating a patient for an urgent problem, does
not have an ongoing relationship with the patient and is not expected to see the patient again.”
Nickler v. Mercy Medical Center, 2003 WL 139791 at *6 (Ohio App. 2003).
The Court finds that the continuing course of treatment doctrine does not apply to the
facts of this case. The Springville clinic is a walk-in facility. Mr. Dayley and Dr. Bowcut had no
prior patient-doctor relationship. Nor did they have a relationship that continued past Mr.
Dayley’s December, 2005 visit. It is undisputed that Mr. Dayley received the results of his lab
tests and had conversations about them with Nurse Fuller. Under these circumstances, the Court
finds there was no continuing duty on the part of the IHC Defendants. Accordingly, the
continuing course of treatment doctrine does not apply to toll the statute of repose. The
undisputed facts establish that Mr. Dayley’s action is barred by the statute of repose.
B. CONSTITUTIONALITY OF THE STATUTE OF REPOSE
Alternatively, Mr. Dayley asserts that the statute of repose is unconstitutional. He argues
that it does not allow a reasonable opportunity to discover one’s injury, in violation of the open
courts clause and uniform operation of laws clauses of the Utah Constitution and the equal
protection clause of the United States Constitution.
1. The Open Courts Clause of the Utah Constitution
Article I, Section 11 of the Utah Constitution is known as the open courts clause. It
states:
All courts shall be open and every person, for an injury done to him in his
person, property or reputation, shall have remedy by due course of law, which
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shall be administered without denial or unnecessary delay; and no person shall
be barred from prosecuting or defending before any tribunal in this State, by
himself or counsel, any civil cause to which he is a party.
Mr. Dayley argues that the four year statute of repose for medical malpractice suits violates this
clause.
A statute of repose does not violate the open courts clause if it satisfies the three-part test
the Utah Supreme Court outlined in Berry v. Beechaircraft Corp, 717 P.2d 670, 675 (Utah 1985).
Waite v. Utah Labor Comm’n, 2017 UT 86. First, a court looks to “whether the legislature has
abrogated a cause of action.” Waite, 2017 UT 86 ¶19 (citing Laney v. Fairview City, 57 P.3d
1007 (Utah 2002)). If it has, the court then determines whether “the law provides an injured
person an effective and reasonable alternative remedy.” Waite, 2017 UT 86 at ¶19 (citing Berry,
717 P.2d at 680)). If there is no substitute or alternative remedy provided, abrogation of the
remedy or cause of action may be justified only if there is a clear social or economic evil to be
eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable
means for achieving the objective.” Id.
With regard to the third element, the Court has “an obligation of deference to legislative
judgments in a Berry review.” Judd v. Drezga, 103 P.3d 135 (Utah 2004). “[W]hen an issue is
fairly debatable, we cannot say that the legislature overstepped its constitutional bounds when it
determined that there was a crisis needing a remedy.” Id.
The Utah legislature articulated its purposes for the Malpractice Act in Utah Code 78B-3402, including the legislature’s effort to reduce the increasing costs of medical malpractice
insurance by reducing litigation against healthcare providers. Giving deference to the legislature
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and its stated motives, the Court finds that it does not violate the open court’s provision of the
Utah Constitution.
2. The Equal Protection Clause of the United States Constitution and the Uniform
Operation of Law Provision of the Utah Constitution
Mr. Dayley next argues that the statute of repose violates both the equal protection clause
of the Fourteenth Amendment to the United States Constitution and the Utah Constitution’s
uniform operation of laws provision found in article I, section 24. The equal protection clause
provides:
All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
The uniform operation of laws provision as set forth in Article I, Section 24 of the Utah
Constitution provides, “All laws of a general nature shall have uniform operation.”
Like the equal protection clause, Utah’s uniform operation of laws provision “guards
against discrimination within the same class and helps ensure that statutes establishing or
recognizing rights for certain classes do so reasonably given the statutory objectives.” Judd, 103
P.3d 135; Malan v. Lewis, 693 P.2d 661, 670-71 (Utah 1984).
Mr. Dayley alleges that the statute of repose distinguishes between those who discover
their claims in time to organize a legal action and those who do not. That distinction, he
contends, does not further the expressed legislative goal of alleviating the alleged medical
malpractice insurance crisis. Mr. Dayley argues that the statute of repose “essentially robs
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individuals of their right to pursue a claim for an injury of which they were unaware, through no
fault of their own.” [Dkt. 88].
In order for a statute to avoid violating the uniform operation of laws provision, the court
must find that it: “(1) is reasonable; (2) has more than a speculative tendency to further the
legislative objective and, in fact, actually and substantially furthers a valid legislative purpose;
and (3) is reasonably necessary to further a legitimate legislative goal.” Judd, 103 P.3d at 141
(quoting Lee v. Gaufin, 867 P.2d 572, 581 (Utah 1993).
The IHC Defendants argue that the Utah Supreme Court has accepted the Utah
Legislature’s goals in the malpractice act to achieve the “legitimate legislative purpose of
limiting health care costs and ensuring the continuing availability of health care resources.”
Judd, 103 P.3d at 142.
Giving “appropriate deference to the policy choices of the citizens’ elected
representatives,” the Court finds that the statute of repose is a “reasonable method of
implementing the legitimate legislative purpose of limiting health care costs and ensuring the
continuing availability of health care resources.” Id. Accordingly, the Court finds that the statute
of repose in Utah Code § 78B-3-404 does not violate the uniform operation of laws provision of
the Utah Constitution or the equal protection clause of the United States Constitution.
CONCLUSION
Because the Court finds that Mr. Dayley’s action is barred by the statute of repose, the
IHC Defendants’ motion for summary judgment is hereby GRANTED. The Court need not
address the IHC Defendants’ alternative argument that they met the required standard of care in
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this case. Additionally, the Court need not consider the IHC Defendants’ motions to exclude
expert witness that are pending before the Court. [Dkt. 66 & 67]. Both of those motions are
MOOT.
IT IS SO ORDERED.
DATED this 27th day of March, 2018.
_________________________________
Dee Benson
United States District Judge
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