Robertson et al v. IHC Health Services et al

Filing 122

MEMORANDUM DECISION granting 100 Motion for Summary Judgment ; granting 102 Motion for Summary Judgment. Signed by Judge Jill N. Parrish on 5/6/22. (alf)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JEFFREY ROBERTSON and WANPHEN
ROBERTSON,
Plaintiffs,
v.
IHC HEALTH SERVICES, INC. dba UTAH
VALLEY REGIONAL MEDICAL
CENTER; CRAIG S. COOK, M.D., P.C.;
CRAIG S. COOK, M.D.; SAMER A.
SALEH, M.D.; KURT O. BODILY M.D.;
THOMAS A. DOCKINSON, M.D.;
MATTHEW B. SPERRY, M.D.; UTAH
VALLEY SPECIALTY HOSPITAL, INC.;
and TALA’AT AL-SHUQAIRAT, M.D.,

MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANTS’
MOTIONS FOR SUMMARY
JUDGMENT
Case No. 2:19-cv-00053-JNP-CMR
District Judge Jill N. Parrish
Magistrate Judge Cecilia M. Romero

Defendants.

This case comes before the court on two motions for summary judgment. Defendant Utah
Valley Specialty Hospital moves for summary judgment against plaintiffs Jeffrey Robertson (“Mr.
Robertson”) and Wanphen Robertson (“Ms. Robertson”) (collectively, “Plaintiffs” or “the
Robertsons”) on the grounds that the two-year statute of limitations set forth in the Utah Health
Care Malpractice Act bars the Robertsons’ claims. ECF No. 100. Defendants IHC Health Services,
Inc. dba Utah Valley Regional Medical Center; Samer A. Saleh, M.D.; Matthew B. Sperry, M.D.;
Craig S. Cook, M.D.; Craig S. Cook, M.D., P.C.; Kurt O. Bodily, M.D.; Thomas A. Dickinson,

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M.D.; and Tala’at Al-Shuqairat, M.D. 1 also move for summary judgment against the Robertsons
on the same grounds. ECF No. 102. For the reasons stated below, the court GRANTS both motions
for summary judgment.
FACTUAL BACKGROUND
I.

JEFFREY ROBERTSON’S MEDICAL CARE
On September 4, 2014, Mr. Robertson presented at Utah Valley Regional Medical Center’s

emergency department with severe abdominal pain. ECF No. 111-1 at 3. A CT scan revealed
evidence of acute pancreatitis and cholelithiasis. Id. at 6. The emergency department discharged
Mr. Robertson to the ICU where Dr. Kurt Bodily (gastroenterologist) and Dr. Craig Cook (general
surgeon) were consulted. Id. at 5. Over the course of the next two months, Dr. Cook performed
several surgeries on Mr. Robertson to remove necrotic material and abscesses and to place drains.
Id. at 6-7.
On October 30, 2014, Mr. Robertson’s providers discharged him to Utah Valley Specialty
Hospital. Id. at 7. There, Mr. Robertson received treatment from Dr. Tala’at Al-Shuqairat for about
five months. ECF No. 111-2 at 6-10. Dr. Cook and his team also continued to follow up with Mr.
Robertson at Utah Valley Specialty Hospital. Id. at 7.
On March 6, 2015, Mr. Robertson was transferred to Salt Lake Regional Medical Center
(“SLRMC”) for inpatient rehabilitation. ECF No. 111-3 at 2. Soon after admission to SLRMC, Mr.
Robertson’s gastronomy tube was accidentally pulled out, prompting a CT scan. Id. at 4. The CT
scan demonstrated significant abscesses in Mr. Robertson’s abdomen. Id. On March 9, 2015, Mr.

1

On April 26, 2022, the parties filed a stipulated voluntary dismissal of Samer A. Saleh, Kurt O.
Bodily, Thomas A. Dickinson, Matthew B. Sperry, and Tala’at Al-Shuqairat. ECF No. 117. The
court subsequently terminated the aforementioned parties. Accordingly, the court construes ECF
No. 102 as filed by IHC Health Services, Inc. dba Utah Valley Regional Medical Center; Craig S.
Cook, M.D.; and Craig S. Cook, M.D. P.C. only.
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Robertson was admitted to the ICU at SLRMC where Dr. Legrand Belnap performed surgery to
remove the necrotic portion of the pancreas and drain the abscesses. Id. at 10-11. Mr. Robertson
underwent several additional surgeries related to the same issue while at SLRMC. Id. at 11.
In connection with the March 9, 2015 surgery, Mr. and Ms. Robertson met with Dr. Belnap.
Dr. Belnap expressed disgust and unhappiness with Mr. Robertson’s prior medical care. ECF
No. 101-1 at 5; ECF No. 101-2 at 6. Before the surgery, he informed Ms. Robertson that if Mr.
Robertson did not undergo surgery, Mr. Robertson would likely die. ECF No. 101-1 at 5; ECF No.
101-2 at 6. After the surgery, Dr. Belnap informed Mr. Robertson that his prior physicians
performed the wrong surgery—they should have removed the entire pancreas, not ten percent of
the pancreas. ECF No. 101-1 at 6.
Mr. Robertson spoke with a friend, Steven Clarke (“Mr. Clarke”), in 2015 about his medical
experience. Mr. Clarke testified that Mr. Robertson “believed that his care wasn’t correct.” ECF
No. 101-3 at 6. Specifically, Mr. Robertson told Mr. Clarke that “his original doctor had not
followed the current standing SOP, the standard operating procedure for dealing with his particular
problem that he presented with, and that that had caused complications.” Id at 7. While Mr. Clarke
did not assist Mr. Robertson in obtaining legal counsel, Mr. Clarke testified in his deposition that
Mr. Robertson “did mention to me initially that he was looking at filing a case.” Id.
II.

UTAH HEALTH CARE MALPRACTICE ACT
At all times relevant here, the Utah Health Care Malpractice Act required plaintiffs to

overcome a series of hurdles before filing a malpractice action against a health care provider. See
UTAH CODE §§ 78B-3-401 through 426. The purpose of the Act is, in part, “to provide a reasonable
time in which actions may be commenced against health care providers while limiting that time to

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a specific period for which professional liability insurance premiums can be reasonably and
accurately calculated.” Id. § 78B-3-402(3).
The Act first requires plaintiffs to give prospective defendants ninety days’ notice of intent
to commence the action. Id. § 78B-3-412(1)(a). Then, plaintiffs must present their case to a
prelitigation panel which determines whether the claims have “merit” or “no merit.” Id.
§ 78B-3-416(2)(a) and -418(2). If the panel finds “no merit,” the plaintiff must present an affidavit
of merit from both the plaintiff’s attorney and a health care provider stating that there is a
reasonable and meritorious cause for filing the medical malpractice action. Id. § 78B-3-423(1)-(2).
At the time that the Robertsons filed this case, the Utah Health Care Malpractice Act required
plaintiffs to obtain a certificate of compliance—which the Division of Occupational and
Professional Licensing (“DOPL”) issued after a finding of “merit” or after submission of the
proper affidavits—in order to file a malpractice claim. 2 Id. § 78B-3-412(1)(b).

2

Plaintiffs are no longer required to obtain a certificate of compliance from DOPL in order to file
a case in court. After Plaintiffs filed this case, the Utah Supreme Court deemed the certificate of
compliance requirement an unconstitutional violation of separation of powers because it requires
DOPL to exercise a core judicial function. See Vega v. Jordan Valley Med. Ctr., LP, 449 P.3d 31,
35 (Utah 2019) (concluding that “Utah Code section 78B-3-412(1)(b), which requires a certificate
of compliance from DOPL in order for a plaintiff . . . to initiate a malpractice action against a
health care provider, is unconstitutional”). The discretionary decisions by DOPL as to whether to
find a claim meritorious or to accept a claimant’s affidavits of merit operated to insulate certain
claims from review in the courts. Therefore, the court struck down the sections of the Malpractice
Act requiring a plaintiff to obtain a certificate of compliance prior to filing a lawsuit. Id.
Additionally, the Utah Supreme Court “declare[d] the language in Utah Code section 78B-3423(7), which mandates a dismissal of any malpractice action filed without a certificate of
compliance, to be unconstitutional.” Id.
At oral argument, Plaintiffs’ counsel suggested that the fact that the Utah Supreme Court later
struck down the certificate of compliance requirement rendered it unfair for the court to apply the
statute of limitations to the Robertsons. But the court cannot ignore the statute of limitations based
on a holding—which the Utah Supreme Court did not apply retroactively—made after the statute
of limitations had run. Moreover, the Robertsons had the opportunity to obtain a certificate of
compliance within the statute of limitations by submitting the required affidavits of merit. The
Robertsons simply failed to do so. Therefore, Vega does not control the outcome here.
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The Act also contains a two-year statute of limitations. Id. § 78B-3-404(1). However, the
Act provides for tolling during the prelitigation panel proceedings. Id. § 78B-3-416(3)(a).
Specifically, filing a request for prelitigation panel review tolls the statute of limitations until the
later of (1) sixty days after the prelitigation panel issues an opinion, (2) sixty days after DOPL
issues a certificate of compliance, or (3) 180 days after the filing of the request for prelitigation
panel review (or any longer period required to complete the prelitigation hearing, as agreed to by
all parties in writing). Id.
III.

PROCEDURAL HISTORY
The Robertsons engaged in the prelitigation review process as follows. Younker Hyde

Macfarlane PLLC (“Younker”), the law firm that initially represented the Robertsons, filed a
Notice of Intent to Commence Action on behalf of Mr. Robertson on August 18, 2016. ECF
No. 111-4 at 1. On January 18, 2017, DOPL notified counsel for the Robertsons that the panel
found the action, dubbed Case No. PR 16-08-014, non-meritorious. ECF No. 111-5 at 1. The notice
advised counsel that, should counsel wish to seek a certificate of compliance, it must file affidavits
of merit by March 30, 2017. Id. On February 14, 2017, Younker withdrew as counsel. ECF
No. 111-6 at 9-10. On February 22, 2017, Younker requested a sixty-day extension to file the
required affidavits of merit, which DOPL granted. 3 Id. at 3-4. DOPL set the new due date for
affidavits of merit as May 19, 2017. Id. at 1. After receiving no affidavits from Mr. Robertson or
counsel, DOPL closed the case on May 31, 2017. ECF No. 111-7 at 4.

3

Younker appears to have filed this request for extension to file the affidavits of merit after
Younker withdrew as counsel for Mr. Robertson. The court is unsure of why the timeline unfolded
as such. A generous reading suggests that Younker wished to provide Mr. Robertson with sixty
days to find counsel who could file the affidavits of merit or to file the affidavits of merit himself.
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Nothing occurred in the case for over a year after DOPL closed the case. On July 17, 2018
Mr. Robertson retained new counsel. One day later, Mr. Robertson’s new counsel, Anne Cohen,
requested a sixty-day extension to file the affidavits of merit. Id. at 1, 8. DOPL informed Ms.
Cohen that the matter had been closed and that she could refile the entire matter if she wished. Id.
at 1.
Ms. Cohen then filed a second Notice of Intent to Commence Legal Action for Medical
Malpractice on August 8, 2018. ECF No. 111-8. Ms. Cohen attached affidavits of merit from
herself as well as Dr. Robert Rick Selby. ECF Nos. 111-9, 111-10. On August 16, 2018, Ms. Cohen
requested a prelitigation screening panel. ECF No. 111-11. DOPL dubbed the new case No. PR
18-08-024 and granted Ms. Cohen’s request on August 20, 2018. ECF No. 111-12. Between August
22, 2018 and August 29, 2018, various counsel entered appearances on behalf of Defendants. ECF
Nos. 111-13 through 111-16. Ms. Cohen subsequently filed an amended Notice of Intent to
Commence Legal Action for Medical Malpractice that added Ms. Robertson to the action. ECF
No. 111-17. After some back and forth, the parties filed a stipulation waiving the prelitigation
hearing panel on November 28, 2018. ECF Nos. 111-18, 111-19. DOPL issued a certificate of
compliance in Case No. PR 18-08-024 on December 17, 2018. ECF No. 111-21. The Robertsons
filed the present action on January 24, 2019. ECF No. 2.
In sum, the Robertsons filed two actions with DOPL as follows. The initial Notice of Intent
was assigned Case No. PR 16-08-014 by DOPL. DOPL did not issue a certificate of compliance
in Case No. PR 16-08-014. Rather, DOPL closed the case after the Robertsons failed to file
affidavits of merit as required by Utah law. The second Notice of Intent, as well as its amendment,
was assigned Case No. PR 18-08-024. DOPL issued a certificate of compliance in Case No. PR
18-08-024.

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LEGAL STANDARD
Summary judgment is appropriate when “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 movant bears the initial burden of demonstrating the absence of a genuine dispute of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has met this
burden, the burden then shifts to the nonmoving party to “set forth specific facts showing that there
is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation
omitted). “A dispute over a material fact is genuine if a rational jury could find in favor of the
nonmoving party on the evidence presented.” Schneider v. City of Grand Junction Police Dep’t,
717 F.3d 760, 767 (10th Cir. 2013) (citation omitted).
“At the summary judgment stage, the judge’s function is not to weigh the evidence and
determine the truth of the matter.” Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d
1513, 1518 (10th Cir. 1994). Instead, the court must “view the evidence and make all reasonable
inferences in the light most favorable to the nonmoving party.” N. Nat. Gas Co. v. Nash Oil & Gas,
Inc., 526 F.3d 626, 629 (10th Cir. 2008).
ANALYSIS
The Utah Health Care Malpractice Act establishes the statute of limitations for medical
malpractice actions. Specifically,
[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, omission, neglect, or occurrence.
UTAH CODE § 78B-3-404(1). However, as discussed below, the statute also contains provisions
that toll the two-year statute of limitations under certain circumstances.

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Defendants contend that Plaintiffs failed to comply with the statute of limitations for
medical malpractice actions. 4 Addressing Defendants’ argument requires the court to answer two
separate questions. First, on what date did Plaintiffs’ cause of action begin to accrue? Second, on
what date did the statute of limitations for Plaintiffs’ cause of action run, considering statutory
tolling?
The court determines that Plaintiffs’ cause of action began accruing on March 9, 2015 and
that Plaintiffs had until December 20, 2017 to file the instant lawsuit. Plaintiffs filed this lawsuit
on January 24, 2019. Because Plaintiffs filed their lawsuit after the statute of limitations ran, the
court GRANTS summary judgment for Defendants.
I.

DATE OF DISCOVERY
The court first identifies the date on which the Robertsons’ cause of action began to accrue.

Under Utah’s medical malpractice discovery rule, a patient injured by negligent medical treatment
has two years from the date of discovery of his or her legal injury in which to file suit. Id.
§ 78B-3-404(1) (requiring that suit be “commenced within two years after the plaintiff or patient
discovers, or through the use of reasonable diligence should have discovered the injury”). A “legal
injury” encompasses “both discovery of injury and the negligence which resulted in the injury.”
Jensen v. IHC Health Servs., Inc., 472 P.3d 935, 938 (Utah 2020) (citation omitted). Therefore,
the statute of limitations for a medical malpractice claim begins “the moment when a patient first

4

The Robertsons object that Defendants waived this argument by not raising it during the
prelitigation administrative proceedings. But the purpose of the prelitigation proceedings is for the
panel to issue “a determination whether each claim against each health care provider has merit or
has no merit, and if meritorious whether the conduct complained of resulted in harm to the
claimant.” UTAH ADMIN. CODE r. 156-78B-14(1). In other words, the panel focuses on the
substance of the claims, i.e., “whether there is a basis in fact and law to conclude that the standard
of care has been breached and the petitioner had been injured thereby.” Id. r. 156-78B-2(8). The
panel does not make determinations regarding applicability of the statute of limitations—that is
the province of the court.
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has knowledge or constructive knowledge of the facts underlying their malpractice claim—in other
words, their legal injury: (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.” Id. at 939 (citation omitted).
“[A] patient’s mere suspicion that her doctor was negligent is insufficient to trigger the
two-year statute of limitations.” Arnold v. Grigsby, 289 P.3d 449, 454 (Utah 2012). But “absolute
or ‘certain knowledge’ of negligence is not required.” Jensen, 472 P.3d at 939 (quoting Arnold,
289 P.3d at 455). Rather, “[a]ll that is necessary 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.” Arnold, 289 P.3d at 455.
Defendants contend that the Robertsons discovered their claim on March 9, 2015, when
Dr. Belnap informed the Robertsons of issues with Mr. Robertson’s prior care. As evidence,
Defendants point to testimony by the Robertsons and their friend, Steven Clarke, during
depositions taken in this case that indicate knowledge of the underlying facts. The Robertsons
respond that they did not learn of Mr. Robertson’s legal injury until August 18, 2016, the date on
which they filed the initial Notice of Intent to Commence Legal Action. In support of their position,
the Robertsons cite two sworn declarations they filed with the court indicating that they discovered
their legal claim on August 18, 2016.
A.

Defendants’ Evidence

Defendants marshal significant evidence that Plaintiffs became aware of their legal
injury—and, specifically, that negligence (i.e., a breach in the standard of care) caused the injury—
during their conversation with Dr. Belnap on March 9, 2015. First, Mr. Robertson testified in his
deposition that Dr. Belnap told him that his prior providers “performed the wrong surgery.” ECF
No. 101-1 at 5. Specifically, Dr. Belnap informed Mr. Robertson that “they should have removed

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the entire pancreas, not ten percent.” Id. at 6. And Dr. Belnap indicated to Mr. Robertson that his
state was critical and “[i]f this surgery didn’t happen today, you would have been deceased today.”
Id. at 5. Moreover, Mr. Robertson noted that Dr. Belnap asked who had performed his prior
surgeries and that Dr. Belnap expressed “disgust” several times with Mr. Robertson’s prior care.
Id. at 5.
Ms. Robertson echoed Mr. Robertson’s testimony at her own deposition. When asked
whether she understood that Dr. Belnap was “unhappy or upset or critical with the care that Jeffrey
had received,” Ms. Robertson replied that, “[y]es, I pick[ed] up that concern because Dr. Belnap
shook his head and he promised me that ‘I will save Jeffrey’s life.’” ECF No. 101-2 at 6. To
reiterate, counsel again asked Ms. Robertson whether she “understood when Dr. Belnap talked
with you and Jeffrey that Dr. Belnap was critical or unhappy with the prior care that Jeff had
received.” Id. at 6-7. Ms. Robertson replied: “I understand that.” Id. at 7.
Finally, Defendants point to statements made by Mr. Clarke, one of the witnesses
designated by Plaintiffs, at his deposition. Mr. Clarke testified that, as of 2015, Mr. Robertson
“believed that his care wasn’t correct.” ECF No. 101-3 at 6. Moreover, Mr. Robertson told Mr.
Clarke that “his original doctor had not followed the current standing SOP, the standard operating
procedure for dealing with his particular problem that he presented with, and that had caused
complications . . . [a]nd that that doctor had saved him by coming in and following the SOP and
removing his pancreas.” Id. at 7. And Mr. Robertson “mention[ed] to [Mr. Clarke] initially that he
was looking at filing a case.” Id.
In sum, the deposition testimony cited by Defendants establishes all three elements of
knowledge of a legal injury. First, the Robertsons knew of Mr. Robertson’s physical injury because
Dr. Belnap informed him that he faced likely death if Dr. Belnap hadn’t repaired the injury. Second,

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the Robertsons knew that Mr. Robertson’s care at Utah Valley Regional Medical Center and Utah
Valley Specialty Hospital caused the injury because Dr. Belnap inquired as to who had performed
the prior surgeries on Mr. Robertson and indicated that Mr. Robertson’s prior improper care caused
the injury. Third, the Robertsons knew that negligence may have caused the injury based on Dr.
Belnap’s statement that the doctors at Utah Valley Specialty Hospital performed the wrong surgery.
Moreover, while not required to establish a legal injury, the Robertsons demonstrated their
awareness of the potential negligence by exploring legal action in the wake of Mr. Robertson’s
treatment. Accordingly, Defendants have adduced substantial evidence demonstrating that the
Robertsons became aware of their legal injury on March 9, 2015. The court now turns to whether
the Robertsons’ evidence raises a genuine issue of material fact as to the date of discovery.
B.

Plaintiffs’ Evidence

The Robertsons respond by advancing two arguments: (1) the sworn declarations submitted
by Plaintiffs create a dispute of material facts and (2) Defendants have mischaracterized the
deposition testimony such that a genuine issue of material fact remains. 5 The court rejects both
arguments.

5

Although not included in their briefing, Plaintiffs’ counsel raised an additional rationale at oral
argument. Specifically, Plaintiffs’ counsel pointed out that the conversations with Dr. Belnap
happened during a highly stressful moment, just before and after Mr. Robertson’s surgery.
Plaintiffs’ counsel argued that both Mr. and Ms. Robertson were unlikely to be in a clear state of
mind at the time. The court recognizes the difficult situation faced by the Robertsons. However,
Plaintiffs’ counsel offered no affidavits or other evidence indicating when the Robertsons became
aware of the facts underlying their legal claim, if not during the conversation with Dr. Belnap.
Moreover, Plaintiffs admitted during their depositions that they remembered the conversation with
Dr. Belnap. Because Plaintiffs offered no evidence that the Robertsons were unable to comprehend
the views expressed by Dr. Belnap during their conversations with him—indeed, Plaintiffs’ counsel
relied on mere conjecture about the Robertsons’ state of mind at oral argument—the court finds no
genuine dispute of material fact as to whether the Robertsons understood Dr. Belnap.
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i.

Sworn Declarations

The Robertsons rely on two sworn declarations that they contend create a genuine issue of
material fact as to the date they discovered their legal injury. First, Mr. Robertson declares that he
“was not aware that [he] had a legal claim for medical malpractice under Utah law until [he] filed
and served through former counsel, a Notice of Intent to Commence Action and Request for
Prelitigation Panel Review to the State of Utah’s Division of Occupational and Professional
Licensing (DOPL) on or about August 18, 2016.” ECF No. 109 at 3. Second, Ms. Robertson avers
that she “was not aware that either Plaintiff Jeffrey Robertson or I had any legal claims until
Plaintiff Jeffrey Robertson, through former counsel, filed and served a Notice of Intent to
Commence Action and Request for Prelitigation Panel Review to the State of Utah’s Division of
Occupational and Professional Licensing (DOPL) on or about August 18, 2016.” 6 ECF No. 110 at
3.
Defendants contend that Plaintiffs’ declarations are tantamount to sham affidavits
submitted to create the appearance of a genuine dispute of material fact. Although “[a]n affidavit
may not be disregarded solely because it conflicts with the affiant’s prior sworn statements,” the
court may nonetheless disregard a conflicting affidavit if it “constitutes an attempt to create a sham
fact issue.” Law Co., Inc. v. Mohawk Constr. & Supply Co., Inc., 577 F.3d 1164, 1169 (10th Cir.

6

The date of discovery cannot be August 18, 2016, as suggested by Plaintiffs. In order to seek out
a lawyer, Plaintiffs would likely have already been aware of the facts underlying their medical
malpractice claim—Mr. Robertson’s injury, the causal event behind the injury, and that the injury
may have resulted from negligence. And, at minimum, they must have become aware of those facts
while speaking with their lawyer in advance of the filing of the August 18, 2016 Notice of Intent.
Accordingly, the date of discovery must precede filing of the Notice of Intent. However, the court
must still determine if the date of discovery falls on March 9, 2015, or some other date between
March 9, 2015 and the date Plaintiffs filed the notice of intent.
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2009) (citation and alterations omitted). In determining whether an affidavit or declaration creates
a sham fact issue, the Tenth Circuit instructs the court to consider whether:
(1) the affiant was cross examined during his earlier testimony; (2) the affiant had
access to the pertinent evidence at the time of his earlier testimony or whether the
affidavit was based on newly discovered evidence; and (3) the earlier testimony
reflects confusion which the affidavit attempts to explain.
Law Co., 577 F.3d at 1169 (citation omitted).
As an initial matter, it is not clear that the sworn declarations create a genuine issue of
material fact. Both declarations claim that the author was unaware that he or she had any “legal
claim” prior to filing the Notice of Intent. But, for purposes of determining the date of discovery,
the question is not whether Plaintiffs were aware they had a legal claim. Rather, the relevant
question is whether Plaintiffs had knowledge or constructive knowledge of the facts underlying
their malpractice claim. And, as discussed above, Plaintiffs’ depositions demonstrate that they
were clearly aware of (1) Mr. Robertson’s injury, (2) the cause of Mr. Robertson’s injury, and (3)
that his injury may have resulted from a medical professional’s negligence. Whether Plaintiffs
were aware that these facts added up to a potential legal claim is not relevant to determining the
date of discovery.
But even if Plaintiffs intended to aver that they were unaware of the facts underlying their
legal claim—which would run directly counter to their statements in their depositions—their
declarations still fail under the sham affidavit doctrine. First, both Plaintiffs had access to all of the
pertinent information about their conversation with Dr. Belnap at the time of their depositions,
because the depositions happened well after the conversation concluded. Second, there is no
evidence that the declarations attempt to explain some confusion that occurred during the
deposition. Indeed, Plaintiffs and their lawyers reviewed their depositions and signed off on them
without indicating any potential confusion. And finally, while counsel only cross-examined Ms.
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Robertson during her deposition, counsel had the opportunity to cross-examine Mr. Robertson
during his deposition had counsel felt like something needed to be clarified.
In conclusion, the sworn declarations submitted by the Robertsons do not create a genuine
issue of material fact as to the date of discovery. The declarations only swear that the Robertsons
discovered their legal claim—not the facts underlying their legal claim—at a later date. And even
if they had sworn that the Robertsons discovered the facts underlying their legal claim at a later
date, the declarations still fail under the sham affidavit doctrine.
ii.

Mischaracterizing Deposition Testimony

Plaintiffs also contend that Defendants have mischaracterized the deposition testimony.
Reading the deposition testimony in its full context, Plaintiffs argue, demonstrates a genuine issue
of material fact. First, Plaintiffs attempt to infuse doubt by referencing the fact that Ms. Robertson
is not a native English speaker and may have misunderstood some of the deposition questions. But
Ms. Robertson never indicated that she did not understand any of the questions posed during her
deposition. If she needed clarification, she asked for clarification before answering the question.
See, e.g., ECF No. 101-2 at 6. Moreover, she used an interpreter to ensure her understanding.
Second, Plaintiffs argue that Ms. Robertson never testified that Dr. Belnap was critical of
Mr. Robertson’s care. Rather, Plaintiffs contend that Dr. Belnap simply told Ms. Robertson that
Mr. Robertson needed another surgery otherwise he would die within a week. While Ms. Robertson
understandably remembered Dr. Belnap’s statement that Mr. Robertson would have died without
an additional surgery, she also clearly understood that Dr. Belnap was critical of Mr. Robertson’s
prior care. See ECF No. 101-2 at 6-7 (“Q: You understood when Dr. Belnap talked with you and
Jeffrey that Dr. Belnap was critical or unhappy with the prior care that Jeff had received, right? A:
(Through the interpreter) I understand that.”).

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Similarly, Plaintiffs contend that deposition testimony by Mr. Robertson and Mr. Clarke
does not establish Mr. Robertson’s knowledge of his legal injury. But Plaintiffs cherry-pick quotes
and misapply the standard for legal injury. As discussed above, knowledge of a “legal injury” does
not equate to knowledge that the patient has a legal cause of action. Therefore, the fact that Mr.
Robertson stated that he did not wonder if he had any legal recourse when he spoke to Dr. Belnap
and the fact that Mr. Robertson did not ask Mr. Clarke about seeking legal advice is inapposite.
Rather, the standard is whether Mr. Robertson knew of his physical injury, the cause of his injury,
and that the injury may have been caused by the negligent act of a medical provider. The fact that
Dr. Belnap informed Mr. Robertson that he had previously undergone “the wrong surgery” and
that he could have died without the proper surgery easily establishes all three elements. The fact
that Mr. Robertson’s mind did not immediately jump to legal action has no import.
In sum, the court disregards the Robertsons’ declarations as sham affidavits, submitted
solely for the purpose of attempting to establish genuine issues of material fact as to when Plaintiffs
discovered their legal injury. Absent the declarations, Plaintiffs must rely on their argument that
Defendants mischaracterized the deposition testimony. But, as discussed above, the court has
reviewed the deposition testimony in its full context and determines that Defendants did not
misrepresent the knowledge admitted by Plaintiffs during their depositions. Accordingly, the court
determines that there is no genuine issue of material fact as to the date on which Plaintiffs
discovered their legal injury: March 9, 2015.
II.

EFFECT OF STATUTORY TOLLING
The Robertsons further argue that, even if their legal injuries accrued and were discovered

no later than March 9, 2015, the proper application of various tolling statutes renders their January

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24, 2019 complaint timely. 7 As noted above, the baseline statute of limitations for medical
malpractice suits is two years from the date of discovery of a legal injury. UTAH CODE
§ 78B-3-404(1). Accordingly, absent any tolling, the Robertsons’ filing deadline would fall on
March 9, 2017, 731 days after the date of discovery. 8
However, because of the extensive prelitigation requirements contained in the Utah Health
Care Malpractice Act, the law also contains tolling provisions applicable to the prelitigation
process. Specifically:
[t]he filing of a request for prelitigation panel review . . . tolls the applicable statute
of limitations until the later of:
(i) 60 days following the division’s issuance of:
(A) an opinion by the prelitigation panel; or
(B) a certificate of compliance under Section 78B-3-418; or
(ii) the expiration of the time for holding a hearing under Subsection
(3)(B)(ii) [which is 180 days after the filing of the request for prelitigation
panel review or any longer period as agreed upon in writing by all parties].
Id. § 78B-3-416(3)(a). Plaintiffs filed a request for prelitigation panel review on August 18, 2016.
See ECF No. 100 at 9. Therefore, the statute of limitations tolled on August 18, 2016, 528 days
after the date of discovery—leaving 203 days to file a lawsuit once the statute of limitations
resumed.

7

The Robertsons also argue that they timely filed their action because it falls within the four-year
statute of repose in the Utah Health Care Malpractice Act. The statute provides that an action
should be commenced within two years of when the plaintiff discovered or should have discovered
the injury, “but not to exceed four years after the date of the alleged act, omission, neglect, or
occurrence.” UTAH CODE § 78B-3-404(1). The statute of repose functions to “abolish a cause of
action after a certain period, even if the action first accrues after the period has expired.” Staley v.
United States, No. 2:18-cv-941, 2022 WL 1014909, at *11 (D. Utah Apr. 5, 2022) (quoting Lee v.
Gaufin, 867 P.2d 572, 576 (Utah 1993)). In other words, if a plaintiff discovers her injury five
years after the injury occurred, she would be unable to file her complaint because the statute of
repose extinguished her claim—even though the two-year statute of limitations only just began to
run. The statute of repose does not, as the Robertsons suggest, extend the statute of limitations
beyond the two years outlined in the law.
8

In this instance, two years is equivalent to 731 days because 2016 was a leap year.
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The relevant facts are as follows. The prelitigation panel issued an opinion on January 18,
2017. At that time, DOPL notified counsel for the Robertsons that they needed to file affidavits of
merit by March 30, 2017 in order to obtain a certificate of compliance. On February 22, 2017, the
Robertsons’ counsel requested a 60-day extension to file their merits affidavits. ECF No. 111-6 at
3. DOPL granted the extension, meaning the affidavits were due on May 19, 2017. ECF No. 1117 at 3. The Robertsons’ counsel withdrew and no affidavits were filed by May 19, 2017.
Accordingly, DOPL closed the matter on May 31, 2017 without issuing a certificate of compliance.
Returning to the statute cited above, the court considers the three deadlines outlined in the
statute. Sixty days following DOPL’s issuance of an opinion filed by the prelitigation panel falls
on March 19, 2017. Sixty days following DOPL’s issuance of a certificate of compliance does not
exist because DOPL never issued a certificate of compliance due to Plaintiffs’ failure to submit
affidavits of merit. 9 And the expiration of time for holding a hearing under Subsection (3)(B)(ii)
falls 180 days after the filing of the request for prelitigation panel review, here, February 14, 2017.
Therefore, the latest date to end tolling falls on March 19, 2017. But even if the court construes
the facts generously for the Plaintiffs and extends the tolling until May 31, 2017—the date on
which DOPL declined to issue a certificate of compliance and closed the case—Plaintiffs’ claims
still fail.
When the tolling ended and running of the two-year limitations period resumed, Plaintiffs
had 203 days remaining on their limitations period. Therefore, they must have filed a lawsuit—or
taken some additional action that would further toll the statute of limitations—by December 20,
2017 (203 days after May 31, 2017). But the Robertsons took no action prior to that date. Indeed,

9

The Robertsons urge the court to toll the statute of limitations until sixty days after DOPL issued
the certificate of compliance in Case No. PR 18-08-024. But that is a separate case from Case No.
PR 16-08-014, for which the Robertsons never received a certificate of compliance.
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the Robertsons did not even retain present counsel until July 17, 2018. Nor did the Robertsons
communicate with DOPL in the intervening time.
Once the Robertsons retained new counsel, counsel made a valiant effort to revive the
Robertsons’ claims. Counsel filed a new notice of intent to commence action, along with affidavits
of merit on August 8, 2018. ECF No. 111-8. Counsel followed this filing with a request for a
prelitigation screening panel on August 16, 2018. ECF No. 111-11. Normally, this request would
have re-tolled the statute of limitations. But by the time counsel filed the request, the statute of
limitations on the Robertsons’ claims had already run. Filing a new request for a prelitigation
screening panel cannot revive a claim for which the statute of limitations has already run. Nor does
it create a new statute of limitations period for a claim whose statute of limitations has already run.
To permit otherwise would effectively nullify the statute of limitations enacted by the Utah
legislature.
Nor does the fact that Plaintiffs later received a certificate of compliance following their
second Notice of Intent revive the Robertsons’ claim. The certificate of compliance that the
Robertsons received pertained to the second Notice of Intent. But, again, refiling the claim in order
to obtain a certificate of compliance cannot revive a claim for which the statute of limitations has
already run. Consider the implications. Plaintiffs’ position would allow a lawyer to refile a closed
medical malpractice case any time after DOPL closed the prelitigation proceedings without issuing
a certificate of compliance (even if several years had passed), obtain a certificate of compliance,
and claim that the statute of limitations did not restart until sixty days following that certificate of
compliance. Such a position runs entirely counter to the purposes of the Utah Health Care
Malpractice Law, which include “provid[ing] a reasonable time in which actions may be
commenced against health care providers while limiting that time to a specific period for which

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professional liability insurance premiums can be reasonably and accurately calculated.” UTAH
CODE § 78B-3-402(3).
Plaintiffs contend that it is unfair to impose the statute of limitations on the Robertsons
when they never received a certificate of compliance—which was necessary to file a lawsuit—
after filing their first Notice of Intent. See ECF No. 107 at 13 (“Construing Utah’s Health Care
Medical Malpractice Act (2010) to require Plaintiffs to file suit before obtaining a Certificate of
Compliance would subvert the express language of the Act, would lead to absurd results, and
would be an inefficient use of resources.”). But the Robertsons did not receive a certificate of
compliance because of their own failure to participate in the prelitigation process. 10 There is no
indication that the Robertsons would not have received a certificate of compliance had the
Robertsons complied with the prelitigation process by timely filing proper affidavits of merit by
the May 19, 2017 deadline. Indeed, present counsel for Plaintiffs filed their affidavits of merit on
August 9, 2018 and received a certificate of compliance after a short time on December 17, 2018.
In other words, had the Robertsons participated in the required prelitigation process, they would
have received the certificate of compliance necessary to file their lawsuit well within the statute of
limitations.
In conclusion, the two-year statute of limitations governing the Robertsons’ claims, as
tolled or otherwise extended by statute, began running on March 9, 2015 and expired no later than
December 20, 2017. Plaintiffs filed this case on January 24, 2019. Therefore, the statute of
limitations contained in the Utah Health Care Malpractice Act bars this action.

10

The court notes that Plaintiffs’ counsel is not responsible for this failure, as the Robertsons had
yet to retain the present counsel at that point.
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CONCLUSION AND ORDER
Accordingly, the court GRANTS summary judgment for Defendants.

DATED May 6, 2022.

BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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