2018 UT App 54

THE UTAH COURT OF APPEALS

KYLIE ANN BEDDOES LEE,

Appellant,

v.

KENNETH L. WILLIAMS AND MOAB FAMILY MEDICINE PC,

Appellees.

Amended Opinion1

No. 20160198-CA

Filed March 29, 2018

Seventh District Court, Moab Department

The Honorable Lyle R. Anderson

No. 130700019

Tyler S. Young and Allen K. Young, Attorneys

for Appellant

Catherine M. Larson and Kathleen J. Abke, Attorneys

for Appellees

JUDGE RYAN M. HARRIS authored this Amended Opinion, in 

which JUDGES KATE A. TOOMEY and JILL M. POHLMAN concurred.

HARRIS, Judge:

¶1 During her first pregnancy, Kylie Lee sustained a 

permanent injury while under the care of Dr. Kenneth Williams. 

This injury occurred because Lee did not receive a particular 

 

1. This Amended Opinion replaces the Opinion in Case No. 

20160198-CA that was issued on January 25, 2018. After our 

original opinion issued, Defendants filed a petition for rehearing, 

and we called for a response. Without changing any of our 

conclusions in the case, we grant the petition for the limited 

purpose of clarifying Nurse’s employment status, as reflected in 

revisions to Paragraph 20 herein.
Lee v. Williams

20160198-CA 2 2018 UT App 54

medication during her pregnancy that almost certainly would 

have prevented the injury. As a result of the injury, all of Lee’s 

future pregnancies now carry a substantial risk of birth defects 

or miscarriage. In fact, Lee’s subsequent pregnancy came with 

serious complications. After the birth of her second child, Lee 

sued Williams for negligence.

¶2 Williams defended the case, in part, on statute of 

limitations grounds. During pretrial proceedings, the trial court 

narrowed the issues to be tried by ruling on summary judgment

that, while genuine issues of material fact precluded a summary 

ruling regarding when Lee learned that she was injured, Lee 

knew no later than March 2009 that Williams may have been 

negligent. A few months later, after a bifurcated trial, the issue of 

when Lee discovered her injury was submitted to a jury. The 

jury found that Lee knew that she “might have sustained an 

injury” prior to September 2010, more than two years before she 

filed her complaint. The court then dismissed Lee’s lawsuit on 

the grounds that it was not timely filed.

¶3 Lee now appeals, and asks us to consider two main 

arguments. First, she contends that the trial court should not 

have determined, on summary judgment, that she knew of 

Williams’s negligence by March 2009. Second, Lee contends that 

the trial court made several errors during the trial, including an 

error regarding a jury instruction and an erroneous decision to 

exclude certain evidence. We disagree with Lee’s first argument, 

and conclude that the trial court’s summary judgment ruling 

was sound. We agree, in large part, with Lee’s second argument, 

however, and conclude that the trial court committed three 

errors in the course of the trial, and that at least two of these 

errors were not harmless. Accordingly, we affirm in part and 

reverse in part, and remand the case for a new trial.
Lee v. Williams

20160198-CA 3 2018 UT App 54

BACKGROUND

Medical History

¶4 In 2008, Lee became pregnant and began receiving 

ongoing medical care from Williams, an employee of Moab 

Family Medicine, PC. During the course of this treatment, 

Williams determined that Lee’s blood was “Type A” and “Rhnegative.”

¶5 Human blood is categorized into types, denoted by a 

letter or letters (for example, Type A, Type AB, Type O). In 

addition, human blood is further categorized, in a binary way, 

relative to its “Rh-factor.” A person’s blood is “Rh-negative” if it 

does not have a specific particle (called the “D particle”) on the 

surface of its red blood cells. Blood that has the D particle is “Rhpositive.” When describing blood type, these terms are often 

shortened to simply “negative” and “positive,” and are often

combined with the letter category, so that a person’s blood is 

referred to, for instance, as “A-negative” or “O-positive.”

Williams testified at trial that mixing blood of different types 

and Rh-factors can cause medical complications, and that

concerns about such complications sometimes arise during 

pregnancy, because a pregnant woman may have a different 

blood type and Rh-factor than her fetus.

¶6 The medical complication pertinent to this case arises 

when a pregnant woman with Rh-negative blood mixes that 

blood with an Rh-positive fetus. In that circumstance, Williams 

testified that the woman may become “Rh-sensitized,” which 

causes her body to react to the fetus’s Rh-positive blood as if it is 

an infection or a foreign substance. Once a woman is Rhsensitized, she is permanently Rh-sensitized. An Rh-sensitized 

woman has no symptoms until she has a fetus with Rh-positive 

blood, at which point the woman’s body may break down the 

fetus’s blood cells, potentially causing severe harm to the fetus 

and sometimes even resulting in a miscarriage.
Lee v. Williams

20160198-CA 4 2018 UT App 54

¶7 In this case, as it turned out, Lee’s blood type was Rhnegative and her first baby’s blood type was Rh-positive, 

creating a risk for Rh-sensitization if their blood mixed. To 

protect against Rh-sensitization, doctors can administer an 

injectable medication called RhoGAM, which Williams testified

significantly reduces the risk of Rh-sensitization. RhoGAM is 

preventative; that is, it can only prevent Rh-sensitization, and 

cannot undo the sensitization once it has occurred. Accordingly, 

RhoGAM has no beneficial effect if the woman who receives it is 

already Rh-sensitized. In cases like Lee’s, where a pregnant 

woman is Rh-negative and her fetus is Rh-positive, a doctor 

would typically order that she receive RhoGAM twice, once 

between 26 and 28 weeks gestation, and once upon delivery.

¶8 At the outset of her first pregnancy, Lee was not yet Rhsensitized, and so RhoGAM treatments to prevent sensitization 

would have been appropriate. While Williams maintains both 

(a) that he informed Lee that she needed a RhoGAM injection at 

26–28 weeks and (b) that he ordered such an injection, there is no 

evidence to support these contentions in the contemporaneously 

created medical records. In any case, it is undisputed that Lee 

did not receive a RhoGAM injection at 26–28 weeks, or at any 

other time prior to delivery of her first child.

¶9 Lee gave birth to her first child on December 30, 2008. 

Williams would later testify that the infant suffered 

complications associated with Rh-positive infants born to Rhsensitized mothers, prompting him to suspect that Lee had 

become Rh-sensitized. Accordingly, Williams ordered tests to 

determine whether Lee was Rh-sensitized. Despite Williams’s

suspicions that Lee may already have been Rh-sensitized, Lee 

received a RhoGAM injection—her first—after the baby’s birth.

Lee testified at trial that the nurse who gave her the injection

indicated that Lee needed it because she was Rh-negative and 

would need additional injections during every subsequent 
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20160198-CA 5 2018 UT App 54

pregnancy. As noted previously, RhoGAM has no beneficial 

effects for women who are already Rh-sensitized.

¶10 Williams maintains that, on December 31, 2008, the day 

after the first child’s birth, he informed Lee that she had become

Rh-sensitized and that she would potentially suffer 

complications and miscarriages in future pregnancies as a result. 

However, there is no confirmation of this in any medical record, 

and Williams acknowledges that, prior to January 5, 2009, he had 

not yet received lab results confirming that Lee was Rhsensitized; he characterized his misgivings that Lee may have 

been sensitized as merely a “suspicion” prior to that date. Also, 

there is no evidence in any of Williams’s records that Lee was 

informed of her sensitization after the lab results were received 

on January 5, 2009, and Rh-sensitization is not mentioned in the 

records for any of the ten doctor’s visits she had after the test.

¶11 A few weeks later, in March 2009, Lee conducted some 

independent Internet searches regarding RhoGAM. Lee 

maintains that she engaged in these searches because she 

remembered the nurse giving her a RhoGAM injection following 

her delivery and became curious about what that meant. During 

her Internet searches, Lee learned that RhoGAM was meant to 

prevent Rh-sensitization. Lee claims that, at this time, she also 

learned for the first time that she should have received a 

RhoGAM injection during her pregnancy. Lee maintains, 

however, that because she received a RhoGAM injection after 

delivering her first child, she believed she was not Rh-sensitized 

at that point. Further, Williams later noted that Lee would have 

learned from her research that her chances of becoming Rhsensitized—even without the RhoGAM injection—were slim, 

something on the order of 1 or 2 percent. Other than these March 

2009 Internet searches, there is no evidence in the record that Lee 

conducted any further research into Rh-sensitization.
Lee v. Williams

20160198-CA 6 2018 UT App 54

¶12 In 2011, Lee became pregnant again. During this 

pregnancy, Lee received treatment from a second doctor. Lee 

never told the second doctor that she knew she was Rhsensitized, or that she was wary of potential problems associated 

with Rh-sensitization. This time, Lee’s child was born with 

serious complications that required blood transfusions and were 

consistent with injuries caused by a mother’s Rh-sensitization. 

At this point, Lee claims, the second doctor informed her she 

had become Rh-sensitized.

¶13 Subsequently, on September 27, 2012, Lee filed an action 

against Williams and Moab Family Medicine (collectively, 

Defendants), alleging that Williams negligently failed to order 

that she receive a RhoGAM injection during her 2008 pregnancy, 

and that this negligence caused her to become Rh-sensitized.

Pre-Trial Proceedings

¶14 In response to the lawsuit, Defendants moved for 

summary judgment, alleging that Lee’s claims were untimely 

under the applicable two-year statute of limitations. Defendants 

pointed out that “[t]he statute of limitations [for medical 

malpractice] begins to run when a person knows or should have 

known that they have suffered an injury” attributable to 

negligence. Defendants argued that Lee knew or should have 

known about both her injury and Williams’s alleged negligence 

in causing it “by March 2009” when she conducted Internet 

searches for “RhoGAM.” After briefing and oral argument, the 

trial court partially granted the motion, and partially denied it. 

The court determined as a matter of law that Lee knew about 

Williams’s alleged negligence no later than March 2009, when 

she learned that she should have been—but was not—given 

RhoGAM during her pregnancy. However, the court also ruled 

that it could not determine, on summary judgment, whether Lee

also knew at that point that she had been injured (Rh-sensitized).
Lee v. Williams

20160198-CA 7 2018 UT App 54

¶15 Following this ruling, Defendants asked the court to 

bifurcate the trial, with the first phase devoted entirely to the 

question of whether Lee’s complaint was timely filed. In this first 

phase, the jury would be asked to determine whether Lee knew

or should have known that she was injured by Williams’s

alleged negligence prior to September 2010 (two years before she 

filed suit). Only if the jury found Lee’s complaint to be timely 

would the trial proceed to a second stage in which the jury 

would determine whether Williams had been negligent and, if 

so, whether that negligence had caused Lee to sustain harm. The 

court granted Defendants’ motion and bifurcated the trial.

¶16 At a pre-trial proceeding immediately before the first 

phase of the trial, the court determined that it would not permit 

Lee—at least not during the first phase of the trial—to introduce 

a “discharge summary” medical record created by Williams on 

January 1, 2009, that stated that Lee “did miss her 26-week 

RhoGAM, which was quite unfortunate and despite having been 

ordered.” The court also determined that it would not permit 

Lee to introduce other medical records maintained by Williams, 

none of which contained any order for a RhoGAM injection and 

therefore contradicted the aforementioned discharge summary.

¶17 Lee objected to the exclusion of this evidence, arguing 

that, while it was certainly relevant to the second-phase 

negligence question, it was also relevant to the first-phase

question of when she knew she was injured by not receiving 

RhoGAM. In response, the court made several statements 

indicating it believed the evidence was irrelevant to the firstphase discovery issues. It ultimately conceded, however, that the 

evidence had at least some “probative value” but would

nevertheless be excluded because of its “potential of confusing 

the jury about whether they’re supposed to decide what 

happened with regard to [the RhoGAM injection] that should 

have been given during pregnancy.”
Lee v. Williams

20160198-CA 8 2018 UT App 54

¶18 Thereafter, the court instructed the parties to submit 

proposed jury instructions for the trial’s first phase. Defendants

submitted an instruction stating that “‘[d]iscovery’ of an injury 

from medical malpractice occurs when an ordinary person 

through reasonable diligence knows or should know that she 

might have sustained an injury” (emphasis added). Lee objected 

to this proposed instruction, arguing that the inclusion of the 

words “might have” misstated the law. Lee argued that the 

instruction should instead indicate that discovery of a legal 

injury occurs when both the injury and the negligence that

caused it have been discovered, as opposed to when the injured 

person knows she “might have” been injured. Ultimately, the 

trial court overruled Lee’s objection, and agreed to give 

Defendants’ requested instruction. In addition, the court agreed 

to present the jury with a special verdict form that asked, “Do 

you find that Defendants have established, by a preponderance 

of the evidence, that Kylie Lee knew or should have known, by 

September 27, 2010, that she might have suffered an injury?”

(Emphasis added.)

Trial

¶19 At trial, during jury selection, some issues arose with one 

of the potential jurors (Juror 26). First, Juror 26 stated that he had 

once been a patient at Moab Family Medicine, Williams’s

employer and co-defendant, although he had not been a patient 

of Williams. Second, he indicated that his wife had once been a 

patient of Williams himself. Third, he indicated that he had 

known of Williams and his wife for several years, although he 

did not know them personally. Fourth, Juror 26 indicated that he 

was involved in a scouting program and one of the boys 

involved in that program was the son of one of Williams’s

nurses (Nurse), who was identified as a trial witness. The trial 

court allowed Lee’s attorney, without apparent restriction, to ask 

Juror 26 follow-up questions about these disclosures. After 

asking these questions, Lee raised a challenge to strike Juror 26 
Lee v. Williams

20160198-CA 9 2018 UT App 54

for cause, expressing concern that Juror 26’s acquaintance with 

Williams and personal relationship with Nurse’s son would bias 

him in favor of Defendants. In response, the trial court asked 

Juror 26 if he would “be affected if [Nurse] testifie[d] as a 

witness” in the case. When Juror 26 stated that he would not be, 

the court denied Lee’s challenge for cause. Lee used all of her 

peremptory challenges during jury selection, and Juror 26 was 

seated on the jury.

¶20 During the trial, Williams called Nurse as a witness for 

the purpose of testifying generally about Williams’s habits as a 

medical practitioner. Nurse testified that, although she was not 

employed by Williams or by Moab Family Medicine, she 

frequently worked with Williams, and that as a matter of course 

Williams thoroughly explained medical injuries to his patients. 

Nurse was not asked any questions about Williams’s care of Lee 

specifically. During the course of Nurse’s testimony, Lee’s 

counsel formed a suspicion that Nurse had discussed her 

testimony with Williams’s counsel, and asked to examine Nurse 

on that basis. During this examination, which occurred outside 

the jury’s presence, Nurse admitted that Williams’s counsel

contacted her the night before she testified, and that she

discussed the substance of her testimony with Williams’s

counsel. Lee objected to Nurse’s testimony and asked that it be 

stricken, arguing that Nurse was one of Lee’s “treating medical 

providers” and that defense counsel could not have ex parte

communications with such providers. The trial court denied the

motion.

¶21 During the trial, Lee testified that Williams never told her 

she was Rh-sensitized. In contrast, Williams testified that he had, 

in fact, informed Lee of her injury the day after her first child

was born.

¶22 At the conclusion of the evidence, the trial court 

instructed the jury as follows:
Lee v. Williams

20160198-CA 10 2018 UT App 54

The issue for you to decide is whether Kylie Lee 

filed her claim more than two years after she 

should have discovered her legal injury. You shall 

consider and weigh all the evidence to determine 

whether Kylie Lee by the use of reasonable 

diligence had actual or constructive facts by which 

she knew or should have known, prior to 

September 27, 2010, that she might have suffered an 

injury. If the greater weight of the evidence 

supports the defense of Dr. Williams and Moab 

Family Medicine on this issue, Kylie Lee’s claim 

against them is time barred, and your verdict is for 

Dr. Williams and Moab Family Medicine. If, 

however, the greater weight of the evidence does 

not support the defense of Dr. Williams and Moab 

Family Medicine on this issue, your verdict should 

be for Kylie Lee.

(Emphasis added.) And:

“Discovery” of an injury from medical malpractice 

occurs when an ordinary person through 

reasonable diligence knows or should know that 

she might have sustained an injury.

(Emphasis added.) In addition, the trial court provided the jury a 

special verdict form that asked them to answer only one 

question: “Do you find that Defendants have established, by a 

preponderance of the evidence, that Kylie Lee knew or should 

have known, by September 27, 2010, that she might have suffered 

an injury?” (Emphasis added.)

¶23 After deliberation, the jury answered the question in the 

affirmative, and found that Lee “knew or should have known, 

by September 27, 2010, that she might have suffered an injury.” 

Based on this verdict, the trial court determined that Lee’s 
Lee v. Williams

20160198-CA 11 2018 UT App 54

complaint against Defendants was time-barred, and therefore 

dismissed her complaint with prejudice.

ISSUES AND STANDARDS OF REVIEW

¶24 Lee raises two main arguments on appeal. First, she

contends that the trial court erred when it determined, as a 

matter of law on summary judgment, that she knew of 

Williams’s potential negligence “by March 2009.” We review a 

trial court’s decision on a summary judgment motion for 

correctness, analyzing “the facts and all reasonable inferences 

drawn therefrom in the light most favorable to the nonmoving 

party.” DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835, 841 (Utah 

1996) (citation and internal quotation marks omitted).

¶25 Second, Lee contends that the trial court committed four 

errors during its management of the trial. Lee first argues that 

the trial court erred by incorrectly instructing the jury about 

when an injury is “discovered.” “Whether a given jury 

instruction correctly states the law is reviewable under a 

correction of error standard, with no particular deference given 

to the district court’s ruling.” State v. Dozah, 2016 UT App 13, 

¶ 13, 368 P.3d 863.

¶26 Next, Lee contends that the trial court erred by refusing to 

dismiss Juror 26 for cause. We review “the propriety of a denial 

or grant of a challenge for cause” for abuse of discretion, looking 

to “the entire voir dire exchange with the challenged juror.” State 

v. Maestas, 2012 UT 46, ¶ 41, 299 P.3d 892 (citation and internal 

quotation marks omitted).

¶27 Lee also argues that the trial court erred in excluding 

certain items of evidence, specifically: (a) Williams’s discharge 

summary stating that he had ordered a RhoGAM injection for 

Lee during her pregnancy; and (b) Williams’s other medical 

records that gave no indication that a RhoGAM injection had 
Lee v. Williams

20160198-CA 12 2018 UT App 54

ever been ordered. We review the admission or exclusion of 

evidence for abuse of discretion. State v. Ramirez, 924 P.2d 366, 

369 (Utah Ct. App. 1996). Even if we determine that evidence 

was excluded in error, we will not disturb the outcome of the 

trial unless “it is reasonably likely a different outcome would 

result with the introduction of the evidence and confidence in 

the verdict is undermined.” State v. Colwell, 2000 UT 8, ¶ 26, 994 

P.2d 177.

¶28 Finally, Lee contends that the trial court erred when it 

denied her motion regarding defense counsel’s ex parte

communication with Nurse. “The permissibility of defense 

counsel’s ex parte meetings with a plaintiff’s treating physicians 

requires interpretation of” Utah appellate court case law. Wilson 

v. IHC Hospitals, Inc., 2012 UT 43, ¶ 24, 289 P.3d 369. Further, 

“[t]he interpretation of precedent is a question of law that we 

review for correctness.” Id. (citation and internal quotation 

marks omitted).

ANALYSIS

I. The Summary Judgment Ruling

¶29 Lee first contends that the trial court erred when it 

determined on summary judgment that she knew of Williams’s

negligence no later than March 2009, even if she may not yet 

have known that she had been injured by any such negligence.

¶30 Under the Utah Health Care Malpractice Act (the 

Malpractice Act), “[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 [legal] injury, whichever first 

occurs.” Utah Code Ann. § 78B-3-404(1) (LexisNexis 2012). In 

interpreting the Malpractice Act, our supreme court has stated 

that “the statute of limitations begins when exercising 
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20160198-CA 13 2018 UT App 54

[reasonable] diligence a patient should have discovered” both (1) 

“his injury” and (2) “its possible negligent cause.” Daniels v. 

Gamma West Brachytherapy, LLC, 2009 UT 66, ¶ 31, 221 P.3d 256. 

In this case, the trial court determined, as a matter of law, that 

Lee knew, no later than March 2009, that Williams was 

negligent, and that therefore the second requirement was met as 

a matter of law, even if the first one might not have been.

¶31 The trial court based this ruling on two facts that it 

considered undisputed: (1) that Lee knew, from her Internet 

searches in March 2009, that she should have been given a 

RhoGAM shot during 26–28 weeks gestation; and (2) that Lee 

knew that she had not in fact been given any such shot. From 

these two facts, the trial court reasoned that, as a matter of law, 

Lee “clearly knew that [Dr.] Williams might have been 

negligent” by no later than March 2009.

¶32 This reasoning is unassailable, and Lee wisely does not 

directly assail it. Instead, she argues that, as a legal matter, a 

person cannot be deemed to have discovered “negligence” 

unless and until that person also discovers that they have been 

injured as a result of that negligence. We disagree.

¶33 The two elements of a medical malpractice action against 

a health care provider do not have to be discovered at the same 

time. Certainly, as a factual matter, simultaneous discovery of 

injury and negligence can occur—for example, a patient who 

discovers that her doctor mistakenly has operated on the wrong 

limb will immediately understand that she has been injured by 

negligence. But the two elements certainly can be discovered 

independently from one another. In Roth v. Joseph, 2010 UT App 

332, 244 P.3d 391, for instance, the patient immediately knew 

that he had been injured, but did not realize until some time 

thereafter that his injury may have been caused by negligence. 

See id. ¶¶ 26–27. There, we held that the statute of limitations 

had not begun to run until the patient discovered the possibility 
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20160198-CA 14 2018 UT App 54

of negligence, the final necessary element for his claim. Id. ¶ 27;

see also Daniels, 2009 UT 66, ¶ 31 (holding that the statute of 

limitations does not begin to run until a plaintiff discovers both 

“his injury and its possible negligent cause”).

¶34 While it is possible for a plaintiff to discover an injury 

before discovering the possibility that it was negligently caused, 

the opposite factual scenario can also occur, especially in 

medical situations where injuries are at least temporarily

asymptomatic. Not all negligent actions lead to injury, and a 

plaintiff may very well learn that her health care provider acted 

negligently long before she learns that any injury resulted from 

that negligence.

¶35 Indeed, our supreme court previously contemplated that 

precise scenario in Seale v. Gowans, 923 P.2d 1361 (Utah 1996). In 

that case, a plaintiff alleged that her doctor was negligent when 

he failed to discover a cancerous mass in her breast during a 

routine mammogram. Id. at 1362. Although that negligence did 

not lead to immediate injury, the plaintiff later came to believe 

that the doctor’s failure to detect the cancerous mass in her 

breast contributed at least in part to the recurrence of her cancer

some years later. Id. At trial, the doctor presented the 

Malpractice Act’s statute of limitations2 as a defense, arguing 

that the plaintiff discovered her legal injury when she learned 

that he had not correctly diagnosed her cancer after her first 

mammogram. Id. On appeal, our supreme court noted that the 

plaintiff had discovered her doctor’s negligence when she 

learned that he had discovered the mass in her breast during her 

first mammogram but had failed to diagnose it as cancer, but 

 

2. At the time, the statute of limitations relevant to medical 

malpractice was codified at Utah Code section 78-14-4. The 

portion of that statute relevant to our analysis did not materially 

differ from the statute of limitations we consider in this case.
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20160198-CA 15 2018 UT App 54

held that the plaintiff had not discovered that she was injured by 

her doctor’s negligence until her cancer finally recurred. Id. at 

1365. In reaching its decision, the court explicitly discussed the 

possibility of discovering negligence before injury, and noted 

that because “the law does not recognize an inchoate wrong,” “a 

claim for negligence is not actionable” until there is “actual loss 

or damage,” even if the would-be plaintiff is already aware of 

the negligence. Id. at 1364 (citations and internal quotation marks 

omitted); see also Hunsaker v. State, 870 P.2d 893, 897 (Utah 1993) 

(noting that actual damages must be pled in addition to a breach 

of duty in order to assert a claim for negligence). Because the 

plaintiff in Seale had discovered her doctor’s negligence, but had 

not yet realized an injury, the supreme court held that the statute 

of limitations did not begin to run until that injury manifested

itself. See Seale, 923 P.2d at 1365.

¶36 This case presents one of those situations—like Seale—

where a plaintiff has discovered that a medical provider may 

have been negligent, but where the results of any such 

negligence would not necessarily be immediately apparent. As 

noted, the odds of becoming Rh-sensitized, even without a 

RhoGAM shot, are something on the order of 1 or 2 percent and, 

moreover, a woman who has been Rh-sensitized may be entirely 

asymptomatic until her next pregnancy. In this case, Lee 

discovered the possibility of Williams’s negligence when she 

learned she should have received RhoGAM during her first 

pregnancy and knew that she did not actually receive it. But 

discovering negligence, at least in this case, is not the same thing 

as discovering injury.

¶37 Accordingly, the trial court’s summary judgment ruling 

was sound. The undisputed evidence demonstrated that Lee 

knew, no later than March 2009, that Williams might have been 

negligent. The trial court correctly entered summary judgment 

on this point, and appropriately narrowed the issues for trial—at 
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20160198-CA 16 2018 UT App 54

least on the statute of limitations issue—to whether and when 

Lee discovered that Williams’s negligence caused her injury.

II. Trial Management Issues

¶38 Next, Lee argues that the trial court made four errors 

during the course of the trial. We agree with Lee on three of the

trial issues raised.

A. Jury Instructions and Verdict Form

¶39 Lee first argues that the trial court erred when it 

instructed the jury that a medical malpractice plaintiff discovers 

injury when “an ordinary person through reasonable diligence 

knows or should know that they might have sustained an injury.” 

(Emphasis added.) Lee argues that the inclusion of the words 

“might have” in the jury instructions and in the special verdict 

form was error. We agree.

¶40 As discussed above, our supreme court has held that, to 

discover legal injury under the Malpractice Act, a plaintiff must 

discover “both the fact of injury and that it resulted from 

negligence.” Daniels, 2009 UT 66, ¶ 1 (emphasis added); see also

id. ¶ 31 (the statute of limitations begins to run when “a patient 

should have discovered his injury and its possible negligent 

cause”). With regard to the “negligence” element, our 

jurisprudence speaks in terms of discovering a “possibility of 

negligence.” Roth, 2010 UT App 332, ¶ 21. But with regard to the 

“injury” element, a mere “possibility” of injury is not enough—a 

plaintiff must know (or at least should know, through 

reasonable diligence) that she actually sustained an injury in 

order for the statute of limitations to start running. See Seale, 923 

P.2d at 1365 (noting that discovery of both negligence and the 

possibility of injury resulting from that negligence is not 

sufficient to trigger the statute of limitations); see also Roth, 2010 

UT App 332, ¶ 21 (noting that a plaintiff must discover “the 

existence of an injury” before the statute of limitations begins to 
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20160198-CA 17 2018 UT App 54

run (emphasis added)); Deschamps v. Pulley, 784 P.2d 471, 473 

(Utah Ct. App. 1989) (noting that “the two-year provision does 

not commence to run until the injured person knew or should 

have known that he had sustained an injury and that the injury

was caused by negligent action” (emphasis added) (citation and 

internal quotation marks omitted)); cf. Model Utah Jury 

Instructions 2d CV325 (2016), https://www.utcourts.gov/

resources/muji/inc_list.asp?action=showRule&id=3#325 [https://

perma.cc/PUP9-4CE2] (stating that “discovery” occurs when a 

plaintiff knows “that [she] sustained the injury” and also knows 

of “the possibility of a health care provider’s fault in causing the 

injury” (emphasis added)). We are aware of no case law 

supporting the proposition that a medical malpractice plaintiff 

discovers legal injury upon realizing that she might have or could 

possibly have sustained an injury.3

¶41 In this case, however, the trial court instructed the jury

that “[d]iscovery of an injury from medical malpractice occurs 

when an ordinary person through reasonable diligence knows or 

should know that she might have sustained an injury” (emphasis 

added). The addition of the words “might have” was erroneous, 

and instructed the jury to apply the law incorrectly. By adding 

these two words to the relevant jury instructions (and to the 

 

3. In Daniels v. Gamma West Brachytherapy, LLC, our supreme 

court stated that “the statute of limitations did not begin to run 

until [the plaintiff] discovered that the [d]efendants’ treatment 

and care might have been negligent and thus might have caused 

his injuries.” 2009 UT 66, ¶ 31, 221 P.3d 256 (emphasis added). 

We read this passage as referring to the possibility of negligence, 

not to the possibility of injury—that if the health care 

professionals had been negligent, then there might be a 

negligent cause for his already-known injury. On the facts of that 

case, there was no question that the plaintiff already knew of his 

injury. Id. ¶¶ 6–7.
Lee v. Williams

20160198-CA 18 2018 UT App 54

special verdict form), the trial court impermissibly relaxed the

burden of proof that Defendants are required to meet for their

statute of limitations defense. Under applicable case law, 

Defendants would need to establish that Lee knew (or should 

have known) about her injury in order to trigger the statute of 

limitations, whereas under this instruction Defendants would 

need to establish only that Lee was (or should have been) aware 

of a possibility that she might be injured.

¶42 In their brief, Defendants attempt to defend the trial 

court’s instruction by asserting that “the statute of limitations 

begins to run when a plaintiff actually discovers, or through the 

use of reasonable diligence should have discovered, her legal 

injury.” Because of this, Defendants assert that “a plaintiff need 

not have actual knowledge of a physical injury in order for the 

time limitation to begin to run,” but need only have “sufficient 

information from which a reasonable person exercising 

reasonable diligence would discover the injury.” This argument 

is correct, as far as it goes. But Defendants overlook the fact that 

the thing that a plaintiff must (or reasonably should) know is 

that she is actually injured, not just that she might have been 

injured. Establishing actual or constructive knowledge of a 

potential circumstance is significantly easier than establishing 

actual or constructive knowledge of the circumstance itself. Cf.

Luckau v. Board of Review of the Indus. Comm’n of Utah, 840 P.2d 

811, 814–15 (Utah Ct. App. 1992) (contrasting the determination 

that a series of events could have caused a result from the 

determination that the events did cause the result, and noting 

that the latter is more difficult to prove).

¶43 In the end, we are persuaded that, by including the words 

“might have,” the jury instruction and the special verdict form 

incorrectly stated the law and effectively lowered Defendants’

burden for proving their affirmative defense. Accordingly, the 

trial court’s decision to include those words in the jury 

instructions and the special verdict form was erroneous.
Lee v. Williams

20160198-CA 19 2018 UT App 54

B. Juror 26

¶44 Lee next contends that the trial court abused its discretion

when it did not dismiss Juror 26 after Lee’s challenge for cause.

We find this argument unpersuasive.

¶45 In general, a prospective juror is not presumed to be 

biased unless some portion of his or her voir dire responses 

reveal “evidence of bias or partiality.” Butterfield v. Sevier Valley 

Hosp., 2010 UT App 357, ¶ 21, 246 P.3d 120 (citation and internal 

quotation marks omitted); see also West v. Holley, 2004 UT 97, 

¶ 14, 103 P.3d 708 (stating that “[v]oir dire responses revealing 

evidence of bias or partiality give rise to a presumption that a 

potential juror is biased”). This can occur when a juror openly 

indicates that he or she would be biased, but can also occur

when a juror’s voir dire responses reveal that he or she has 

developed a personal “‘relationship of affection, respect, or 

esteem’” with a witness or party “‘that cannot be deemed 

disinterested, indifferent, or impartial.’” State v. Cox, 826 P.2d 

656, 660 (Utah Ct. App. 1992) (quoting State v. Brooks, 563 P.2d 

799, 802 (Utah 1977)). After a presumption of bias has been 

raised, the prospective juror must be dismissed for cause unless 

the presumption is rebutted. Id.; see also West, 2004 UT 97, ¶ 14 

(stating that a juror who is presumed to be biased “must be 

dismissed unless that presumption is rebutted”).

¶46 Courts should not lightly presume, however, that a 

potential juror is biased. Here, Lee maintains that the court 

should have presumed that Juror 26 was biased following Juror 

26’s statements that he was generally acquainted (but not 

friends) with Williams, that he received medical care at Moab 

Family Medicine (but not from Williams), and that he was 

involved in a scouting program with Nurse’s son. We do not 

agree that Juror 26’s answers were sufficient to raise a

presumption of bias. “Jurors are not biased merely because they 

are acquainted with a party or witness.” Butterfield, 2010 UT App 
Lee v. Williams

20160198-CA 20 2018 UT App 54

357, ¶ 32. Juror 26’s statements that he had met both Williams

and Nurse and had been treated at the clinic which employed 

Williams, without more, do not indicate any relationship beyond 

the level of a mere acquaintance with Williams and Nurse.

And bias cannot fairly be inferred from a mere acquaintanceship

alone.

4

¶47 This conclusion is bolstered by the fact that, in this case, 

the trial court gave Lee ample opportunity to question Juror 26

to determine the extent and depth of any potential bias. Lee was 

permitted to question Juror 26 regarding his association with 

Nurse and Williams; Juror 26 answered Lee’s questions; and 

Lee’s counsel finished questioning Juror 26 in his own time, 

without being cut off by the trial court. While trial courts are by 

no means required to “‘permit every question that might 

disclose some basis for counsel to favor or disfavor seating a 

particular juror,’” State v. Holm, 2017 UT App 148, ¶ 11, 402 P.3d 

193 (quoting State v. Reece, 2015 UT 45, ¶ 45, 349 P.3d 712), the 

fact that the trial court in this case afforded that courtesy to Lee

 

4. While the standards for granting or denying motions to strike 

a juror “for cause” should remain the same for small-town trials 

as they are for big-city trials, we note that the issue of potential 

jurors being acquainted with parties, witnesses, or other jurors 

will, as a practical matter, arise far more often in rural areas than 

in counties with large populations. If jurors could be removed 

for cause simply because they are acquainted with a party or a 

witness or another juror, seating a jury in a small-town trial 

would be a difficult exercise indeed. To raise a presumption of 

bias, whether in a big city or in a small town, there must be more 

than a simple, neutral acquaintance; instead, there must be a 

“relationship of affection, respect, or esteem” (or its opposite) 

with a witness or party “that cannot be deemed disinterested, 

indifferent, or impartial.” State v. Cox, 826 P.2d 656, 660 (Utah Ct. 

App. 1992) (citation and internal quotation marks omitted).
Lee v. Williams

20160198-CA 21 2018 UT App 54

clearly satisfied the court’s responsibility to allow Lee the 

opportunity to adduce facts that may support a presumption 

that Juror 26 was biased. Even after being allowed more or less 

unfettered permission to question Juror 26, Lee was unable to 

unearth anything more than the fact that Juror 26 was merely

acquainted with both Williams and Nurse. The trial court 

followed up by asking Juror 26 if his relationship with Nurse 

would affect his ability to be fair and impartial, and Juror 26 

answered in the negative. Certainly, this question would not by 

itself have been enough to rehabilitate Juror 26 if a presumption 

of bias had been raised. See West, 2004 UT 97, ¶ 15 (stating that 

“a presumption of bias cannot be rebutted solely by a juror’s 

bare assurance of her own impartiality”). But here, because no 

presumption of bias was raised by Juror 26’s disclosures, this 

question by the trial court was appropriate and bolstered its 

conclusion that Juror 26 could be fair and impartial.

¶48 Accordingly, the trial court did not abuse its discretion

when it denied Lee’s motion to dismiss Juror 26 for cause.

C. Exclusion of Evidence

¶49 Lee next contends that the trial court erred when it 

refused to allow Lee, during the bifurcated trial, to introduce 

certain evidence derived from Williams’s own medical records

generated during his treatment of Lee. Specifically, Lee contends 

that the trial court erred when it excluded: (a) part of Williams’s 

discharge summary medical record stating that he had ordered a 

RhoGAM injection for Lee during her pregnancy, and (b) some 

of Williams’s other medical records that contradicted this 

assertion by indicating that no RhoGAM injection had ever been 

ordered for Lee.

¶50 The parties and the trial court offer four distinct 

characterizations of the trial court’s reasoning in excluding the 

proffered evidence. Lee asserts that the trial court excluded the 

evidence purely on the grounds that the court did not find it to 
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20160198-CA 22 2018 UT App 54

be “relevant” under rule 402 of the Utah Rules of Evidence, and 

argues that this rationale is incorrect. Defendants argue that the 

proffered evidence was indeed irrelevant, but also maintain, in 

the alternative,5 that the evidence was properly excluded under 

rule 403 of the Utah Rules of Evidence, because its probative 

value was substantially outweighed by either the danger of 

unfair prejudice or by the risk of “waste of time.” For its own 

part, while the trial court discussed relevance at length, it stated

that its ultimate decision to exclude the proffered evidence 

rested on its determination that the probative value of the 

evidence was outweighed by the risk that it would “confus[e] 

the jury,” apparently also referencing rule 403. We find none of 

these justifications persuasive.

¶51 First, the evidence was relevant. “Relevant evidence is 

admissible,” Utah R. Evid. 402, and evidence meets the 

definition of “relevant” if it has “any tendency” to make a fact 

“of consequence in determining the action” “more or less 

probable than it would be without the evidence,” Utah R. Evid. 

401(a)–(b). As our supreme court has noted, the concept of 

“relevance” is extremely broad. See State v. Reece, 2015 UT 45, 

¶ 64, 349 P.3d 712 (stating that “[e]vidence that has even the 

slightest probative value is relevant under the rules of evidence”

(alteration in original) (citation and internal quotation marks 

omitted)).

¶52 In deciding whether and to what extent the proffered 

evidence was relevant, the trial court seems to have been 

informed, at least in part, by its bifurcation of the trial into two 

phases: one phase concerning whether the statute of limitations 

barred Lee’s claim and, if necessary, a second phase concerning 

 

5. We can, of course, affirm a trial court’s decision on any 

ground supported by the record. See Bailey v. Bayles, 2002 UT 58, 

¶ 10, 52 P.3d 1158.
Lee v. Williams

20160198-CA 23 2018 UT App 54

the merits of Lee’s medical malpractice claim, including the 

question of whether Williams was negligent. Certainly, the 

proffered evidence would have been relevant to whether 

Williams was negligent, and would arguably have been even

more probative to that issue than to the determination of when 

Lee knew about her injury. However, the proffered evidence is 

nevertheless relevant to whether and when Lee knew about her 

injury.

¶53 Lee wanted to use the medical records to argue that 

Williams misrepresented in his records that he had ordered a 

RhoGAM injection for Lee but in fact had never done so, and

hoped that, by so doing, she could cast doubt upon Williams’s

credibility, including specifically the credibility of his assertion 

that he had informed Lee of her Rh-sensitization on or about 

December 31, 2008. We agree with Lee that this evidence would 

have at least some tendency to make it more or less probable that 

Williams informed Lee of her Rh-sensitization as he claimed

because it touched on whether Williams’s testimony was

generally credible. Evidence that “may shed light on the 

credibility of a witness [] does have probative value.” See State v. 

Miranda, 2017 UT App 203, ¶ 35, 407 P.3d 1033. We therefore 

consider the proffered evidence to have been relevant, even 

during the first stage of the bifurcated proceedings. In fact, the 

trial court stated as much during its oral ruling, noting that the 

evidence “has probative value.” Thus, the proffered evidence 

should not have been excluded pursuant to rule 402.

¶54 Similarly, we are not persuaded that the evidence should 

have been excluded pursuant to rule 403. That rule requires trial 

courts to balance the probative value of proffered evidence 

against countervailing factors, such as the potential for unfair 

prejudice, waste of time, or confusion, and instructs trial courts 

to “exclude relevant evidence if its probative value is 

substantially outweighed by” any of those factors. Utah R. Evid. 

403. We are unpersuaded that the danger of any of those things 
Lee v. Williams

20160198-CA 24 2018 UT App 54

“substantially outweighed” the probative value of the proffered 

evidence.

¶55 First, we do not see any appreciable risk of unfair 

prejudice to Williams by admission of the proffered evidence. 

Evidence is unfairly prejudicial when it has “the tendency to 

suggest a verdict on an improper, emotional basis.” State v. 

Hildreth, 2010 UT App 209, ¶ 44, 238 P.3d 444. However, “[r]ule 

403 does not require a trial court to dismiss all prejudicial 

evidence because all effective evidence is prejudicial in the sense 

of being damaging to the party against whom it is offered.” State 

v. Marchet, 2009 UT App 262, ¶ 44, 219 P.3d 75 (second alteration 

in original) (citations, internal quotation marks, and brackets

omitted). Here, we are unable to perceive any potential for unfair

prejudice to Williams as a result of introducing his own medical 

records. Certainly, the proffered evidence may indicate to the 

jury that Lee did not receive a RhoGAM injection during her first 

pregnancy (a stipulated fact), and that Williams had no 

contemporaneous record of ordering one. Indeed, it may 

potentially even raise the possibility that Williams wrote that he 

ordered an injection in order to conceal his negligence. While 

this evidence could have reflected poorly on Williams’s

credibility, that is not a danger of unfair prejudice. Weighing the 

credibility of witnesses is one of a jury’s principal functions. See 

Lyon v. Bryan, 2011 UT App 256, ¶ 10, 262 P.3d 1199. We perceive 

no appreciable danger of unfair prejudice to Williams from the 

introduction of his own medical records regarding his treatment 

of Lee.

¶56 Second, we do not perceive any appreciable risk that 

admission of Williams’s own medical records would have 

constituted an undue waste of the jury’s time. There are many 

ways in which evidence may waste a jury’s time. For instance, 

evidence “wastes time” if it will “do little more than tell the jury 

what result to reach,” see Davidson v. Prince, 813 P.2d 1225, 1232 

n.7 (Utah Ct. App. 1991), or if it is “utterly unrelated” to the 
Lee v. Williams

20160198-CA 25 2018 UT App 54

issues central to a proceeding, see State v. Martin, 2017 UT 63, 

¶ 49. But those concerns are not present here. The proffered 

evidence was not voluminous, and would not have added 

significant time to the trial. Moreover, the evidence was not 

“utterly unrelated” to the question the jury was asked to answer.

¶57 Finally, we disagree that the probative value of the 

excluded evidence was substantially outweighed by the danger 

that it would have confused the jury. Without doubt, the 

proffered evidence also shed light on the negligence questions 

that were to be taken up, if at all, in the second phase of the 

bifurcated trial. But merely because a piece of evidence is 

relevant to more than one issue does not mean it is inherently 

confusing. A jury—especially a properly instructed one—can be 

expected to keep straight the questions it is asked to answer in a 

bifurcated trial, and we have no trouble concluding that it is 

improper to exclude relevant evidence in the first phase of a 

bifurcated trial simply because that evidence might be more

relevant to the second phase.

¶58 Although trial courts generally have quite a bit of latitude 

to admit or exclude evidence pursuant to rule 403, see Diversified 

Holdings, LC v. Turner, 2002 UT 129, ¶ 38, 63 P.3d 686, that

discretion is not unbounded. In our view, that discretion was 

exceeded here. The trial court should not have excluded 

Williams’s own medical records from evidence during the first 

phase of the bifurcated trial.

D. Counsel’s Ex Parte Conversation with Nurse

¶59 Lee next contends that the trial court erred when it denied 

her motion regarding the ex parte conversation that occurred 

between Williams’s counsel and Nurse. Relying on Sorensen v. 

Barbuto, 2008 UT 8, 177 P.3d 614, and its progeny, Lee maintains

that any ex parte communication between Williams’s counsel 

and Nurse that concerned Lee’s case should have been deemed 

improper, and that the trial court should then have engaged in 
Lee v. Williams

20160198-CA 26 2018 UT App 54

further deliberation to determine how to mitigate the 

impropriety. We find Lee’s arguments persuasive.

¶60 In Sorensen, our supreme court recognized a duty of 

confidentiality between physicians and patients, and held that 

this duty prevents a physician from “disclosing information 

received through the physician-patient relationship.” See id. ¶ 12. 

Specifically, the court held that this duty prohibits “ex parte 

communications between a plaintiff’s treating physician” and 

defense counsel, who is acting as the attorney for the plaintiff’s 

litigation opponent.6 Id. ¶ 21. In the event that defense counsel 

wishes to obtain information from a plaintiff’s treating 

physician, that attorney must use “traditional forms of formal 

discovery,” such as interrogatories and depositions. Id. ¶ 24. The 

supreme court listed two important reasons for this rule: 

furthering “patient expectations of physician-patient 

confidentiality,” and providing sufficient “judicial monitoring” 

of information exchanges between treating physicians and 

defense attorneys. Id. ¶ 21.

¶61 Our supreme court elaborated on this standard in Wilson 

v. IHC Hosps., Inc., 2012 UT 43, 289 P.3d 369. In that case, the 

court clarified that once an improper ex parte communication 

has occurred, the “[s]election of an appropriate sanction requires 

fact-finding combined with the exercise of discretion” by the 

trial court. Id. ¶ 94. Thus, when a trial court becomes aware of an 

 

6. The court also vacated a previous decision of the Utah State 

Bar Ethics Advisory Opinion Committee that had authorized ex 

parte communications between defense lawyers and treating 

physicians. Sorensen v. Barbuto, 2008 UT 8, ¶ 27, 177 P.3d 614. In 

so doing, the court “instruct[ed] lawyers,” as a matter of 

attorney ethics, “to confine their contact and communications 

with a physician or therapist who treated their adversary to 

formal discovery methods.” Id.
Lee v. Williams

20160198-CA 27 2018 UT App 54

improper ex parte communication, it may exercise its power to 

levy sanctions, which “may include fines, attorney fees, 

exclusion of evidence, disqualification of counsel, or any other

appropriate response,” and which should be “appropriately 

related to the nature of the misconduct and the resulting 

prejudice, either actual or potential.” Id.

¶62 In this case, Williams’s counsel contacted Nurse7 ex parte 

on the evening before Nurse’s testimony, and secured Nurse’s 

agreement to testify against Lee, chiefly regarding some of 

Williams’s general practice habits. Lee maintains that this 

conversation violated the principles our supreme court set forth 

in Sorensen and Wilson. At various points during this appeal, 

Defendants have posited two arguments supporting their

assertion that this conversation was not improper under 

Sorensen. First, Defendants argued in their brief that Nurse was 

not a treating medical provider for Lee and therefore not subject 

to Sorensen’s bar. Second, Defendants asserted at oral argument 

that counsel’s ex parte communications with Nurse were not 

legally prohibited because those communications did not 

 

7. Defendants make no argument that the duty of confidentiality 

articulated in Sorensen applies only to physicians and not to 

other health care professionals, such as nurses. Indeed, both 

sides appear to be operating under the assumption that the duty 

applies to nurses in the same way it applies to physicians. 

Because the parties do not raise the issue, we do not directly 

address it, other than to note, in passing, that courts in other 

states that have prohibited ex parte communications between 

plaintiff’s treating physicians and defense counsel have 

extended the fiduciary duty of confidentiality to nurses as well. 

See, e.g., Roberson v. Liu, 555 N.E.2d 999, 1002 (Ill. App. Ct. 1990) 

(ex parte sworn statement provided to defense counsel by nurse 

who was present during plaintiff’s surgery breached the 

fiduciary duty of confidentiality).
Lee v. Williams

20160198-CA 28 2018 UT App 54

include any discussion of Williams’s specific treatment of Lee, 

but instead were limited merely to a discussion of Williams’s

practice habits in general. Neither argument is convincing.

¶63 The first argument merits little discussion. Defendants’ 

representation, in their brief, that Nurse “is not and was not 

[Lee’s] treating medical provider” is plainly incorrect. After 

Defendants made that assertion in their brief, Lee attached to her 

reply brief some ten pages of medical records demonstrating 

that Nurse treated Lee during Lee’s 2008 pregnancy, including 

treatment as early as October 2008, roughly the period when Lee 

should have received her first RhoGAM injection. There is no 

question that Nurse was one of Lee’s treating providers during 

the pregnancy in question, and therefore Nurse is a health care 

provider with whom defense counsel should not have had ex 

parte conversations.

¶64 The second argument differs from the first one, in that the 

factual assertions Defendants make are correct, but the argument 

is ultimately no more persuasive. As a factual matter, the 

conversation between Nurse and Williams’s attorney appears to 

have been limited to a discussion of some of Williams’s general 

treatment habits. Specifically, Williams wanted to call Nurse as a 

witness so that she could explain to the jury that Williams was 

the type of doctor who typically explains medical injuries to his 

patients in a thorough manner. Lee’s counsel was afforded the 

opportunity, at trial (and outside the presence of the jury), to ask 

Nurse about the contents of her conversation with Williams’s

attorney, and Nurse confirmed counsel’s account that there was 

no specific discussion of Lee at all, and certainly no discussion 

about Williams’s or Nurse’s treatment of Lee. Although the 

conversation did not specifically include any discussion of Lee 

or Williams’s care of Lee, we are persuaded that the 

conversation was nevertheless forbidden by the rule set forth in 

Sorensen.
Lee v. Williams

20160198-CA 29 2018 UT App 54

¶65 One of the reasons our supreme court gave for forbidding 

ex parte communications between treating physicians and 

defense attorneys is the need to assure “patients that their honest 

and complete disclosures of symptoms and medical history to 

treating physicians will be kept confidential.” Sorensen, 2008 UT 

8, ¶ 22. The court noted that “judicial monitoring” of those 

conversations is necessary to further that goal, because 

otherwise “patients would lack adequate assurance that their 

candid responses to questions important to determining their 

appropriate medical treatment would remain confidential.” Id. 

The court considered, but rejected, the notion of “placing the 

burden of determining relevancy” on either the attorney or the 

physician, noting as follows:

Placing the burden of determining relevancy on an 

attorney, who does not know the nature of the 

confidential disclosure about to be elicited, is risky. 

Asking the physician, untrained in the law, to 

assume this burden is a greater gamble and is 

unfair to the physician. We believe this 

determination is better made in a setting in which 

counsel for each party is present and the court is 

available to settle disputes.

Id. ¶ 23 (citation omitted); see also Wilson, 2012 UT 43, ¶ 91 

(noting that defense counsel “has a duty in the underlying 

lawsuit to neither instigate nor facilitate a treating physician’s 

breach of the duty of confidentiality to his patient through an 

improper ex parte meeting”).

¶66 In both Sorensen and Wilson, the ex parte communications 

in question actually did concern the specific treatment of the 

plaintiffs. We are unaware of any Utah case discussing whether 

an ex parte conversation between a treating physician and a 

defense attorney that does not discuss the patient’s care would 

violate the principles set forth in Sorensen. As a practical matter, 
Lee v. Williams

20160198-CA 30 2018 UT App 54

we recognize that a conversation simply about setting a date for 

scheduling a deposition, or a friendly conversation in a grocery 

store about the weather or the local football team’s fortunes, 

would not be problematic. See, e.g., Goin v. United States, No. 

3:13-cv-564-NJR-DGW, 2015 WL 1577771, *2 (S.D. Ill. Apr. 2, 

2015) (holding that a conversation between an attorney and a 

doctor that was limited to scheduling a date for a deposition did 

not violate Illinois’s version of Sorensen). But a conversation 

about the merits or substance of the case, even if that 

conversation does not explicitly touch on the patient’s care, is 

too close to the line, and in our view is still within the Sorensen

prohibition. See, e.g., Burns v. Michelotti, 604 N.E.2d 1144, 1148–49 

(Ill. App. Ct. 1992) (determining that an ex parte communication 

that concerned only details relevant to a change-of-venue 

motion, including whether the doctor’s office was in a certain 

county and whether all of the doctor’s treatment of the patient 

had been in a certain county, violated Illinois’s version of 

Sorensen, even though the communications did not concern the 

specifics of the doctor’s treatment of the patient); see also Smith v. 

Orthopedics Int’l Ltd., 244 P.3d 939, 945 (Wash. 2010) (holding that 

even transmitting publicly available documents to a patient’s 

treating physician without asking any questions violates 

Washington’s prohibition on ex parte communications).

¶67 Accordingly, we conclude that any ex parte 

communication between a defense attorney and a plaintiff’s 

treating physician that is related to the merits or substance of the 

plaintiff’s case in any respect violates the rule set forth in 

Sorensen, regardless of whether the confidential details of the 

patient’s care are in fact discussed and regardless of whether 

actual prejudice results. Accordingly, the conversation between 

Williams’s counsel and Nurse was improper, even though it did 

not include any discussion of Williams’s or Nurse’s specific 

treatment of Lee. The trial court’s conclusion to the contrary was 

incorrect.
Lee v. Williams

20160198-CA 31 2018 UT App 54

¶68 The trial court, on remand, must determine what (if any) 

sanction is appropriate under the circumstances. When 

considering what, if any, sanction to impose, a trial court may 

take into account whether and to what extent the patient’s care 

was actually discussed, and whether any confidential details 

were divulged. In this case, the fact that the conversation 

between counsel and Nurse included neither a discussion of 

Lee’s medical treatment nor a discussion of any confidential 

information Lee may have shared with Nurse or Williams

during the course of her treatment may counsel in favor of a 

light sanction. See, e.g., Burns, 604 N.E.2d at 1150–51 (imposing a 

very light “sanction” in view of the “minimal nature of the

contact in question and its lack of relevance to the substance of 

the case”). But selection of that sanction is for the trial court to 

determine. See Wilson, 2012 UT 43, ¶ 94 (stating that “[s]election 

of an appropriate sanction” is “a decision [that] is best made in 

the first instance by a trial court,” because it “requires fact 

finding combined with the exercise of discretion”).

III. Harmless Error

¶69 Having determined that the trial court made three errors, 

we next consider whether those errors, taken together, merit 

reversal. “The court at every stage of the proceeding must 

disregard any error or defect in the proceeding which does not 

affect the substantial rights of the parties.” Utah R. Civ. P. 61. 

Accordingly, when we determine that a trial court erred, we do 

not reverse unless “there is a reasonable likelihood that a 

different result would have been reached” absent the errors. 

Belden v. Dalbo, Inc., 752 P.2d 1317, 1321 (Utah Ct. App. 1988).

The burden of showing that a party was harmed by the trial 

court’s error rests on that party. State v. Lafferty, 2001 UT 19, ¶ 35, 

20 P.3d 342.

¶70 Here, we have noted that the trial court erred in three

instances, by: (1) adopting jury instructions (and a special verdict 
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20160198-CA 32 2018 UT App 54

form) that misstated the legal standard for when a plaintiff 

discovers her injury, thus relaxing Defendants’ burden of proof 

for their statute of limitations defense; (2) excluding evidence at 

trial that was relevant to the question of what Lee knew and 

when she knew it; and (3) denying outright Lee’s motion 

regarding defense counsel’s improper ex parte communication 

with Nurse. The first two of these errors cannot be categorized as 

harmless, and therefore a new trial is required.

¶71 In our view, the first issue is particularly significant. The 

jury was presented with an incorrect legal standard in both the 

jury instructions as well as in the special verdict form—a 

standard that effectively relaxed the burden of proof that 

Defendants had to meet for their affirmative defense. The jury 

was told that Lee would be considered to have discovered her 

injury as soon as she “knew or should have known she might 

have been injured.” As we have explained, this is incorrect; the 

jury should have been instructed, in keeping with applicable 

case law and MUJI 2d CV325, that a plaintiff is not considered to 

have discovered her injury until she knows, or reasonably 

should know, that she has sustained an injury. After being given 

an incorrect legal standard, the jury may well have determined 

that Lee knew that she might be injured as soon as she 

discovered Williams’s alleged negligence, regardless of whether 

she knew or should have known she was actually Rh-sensitized 

at that point. There is a reasonable likelihood that the jury may 

have reached a different result had they been given jury 

instructions and a verdict form that articulated the correct legal 

standard.

¶72 The second issue is also material. Lee correctly notes that 

the only witness to testify that Lee knew of her injury prior to 

the birth of her second child was Williams, who testified that he 

told Lee about it on December 31, 2008, the day after her first 

child was born. But Williams’s own medical records do not 

independently support his testimony, and the jury was not 
Lee v. Williams

20160198-CA 33 2018 UT App 54

permitted to see all of those records, including the records 

showing that no RhoGAM injection was ever ordered for Lee 

during her pregnancy coupled with the record containing an 

unsupported post-birth assertion to the contrary. As we 

conclude above, all of these records were relevant to the jury’s 

determination during the first phase of the bifurcated trial, and 

should not have been kept from the jury. We are unable to say 

with any degree of certainty that the outcome of the trial would 

have been the same had the jury been given the opportunity to 

consider all of Williams’s records.

¶73 In the end, we conclude that these two errors—especially 

taken together—may have made a difference in the outcome of 

the trial, and that “there is a reasonable likelihood that a 

different result would have been reached” absent the errors. 

Belden, 752 P.2d at 1321. Accordingly, the trial court’s adoption 

of an improper jury instruction and exclusion of some of 

Williams’s medical records were not harmless errors.

¶74 The third error we identify—the trial court’s failure to 

identify the improper ex parte communication between Nurse 

and Williams’s attorney as a violation of the Sorensen standard—

may not have been an error that led, on its own, to a different 

outcome. However, because we remand the case for a new trial 

based on the harmful effect of the first two errors, we direct the 

district court, on remand, to consider an appropriate sanction (if 

any) for the improper ex parte communication.

CONCLUSION

¶75 We affirm the trial court’s summary judgment decision, 

and conclude that the trial court appropriately narrowed the 

issues for trial. During the trial, however, the court committed 

three errors, two of which are potentially harmful enough to 

warrant reversal. Accordingly, we affirm in part and reverse in 

part, and remand this case to the trial court for a new trial or for 
Lee v. Williams

20160198-CA 34 2018 UT App 54

such other further proceedings as may be consistent with this 

opinion.