This opinion is subject to revision before final publication in the Pacific Reporter

2020 UT 57

IN THE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

E RIK J ENSEN

,

Appellant,

v.
IHC H EALTH S ERVICES

, I NC

. dba LDS H OSPITAL

, Appellee

.

No. 20190026
Heard March 9, 2020 Filed August 17, 2020

On Direct Appeal

Third District, Salt Lake The Honorable Barry G. Lawrence

No. 150900735

Attorneys: Charles H. Thronson, Salt Lake City, for appellant

Nathan W. Burbidge, Paul D. Van Komen, Patrick L. Tanner, Salt Lake City, for appellee

J USTICE P ETERSEN authored the opinion of the Court, in which

C HIEF J USTICE D URRANT , A SSOCIATE C HIEF J USTICE L EE
, J USTICE H IMONAS , and J USTICE P EARCE joined.

J USTICE P ETERSEN , opinion of the Court:

INTRODUCTION

Erik Jensen suffered a cardiac arrest after undergoing ¶1 abdominal surgery at LDS Hospit al. His heart did not beat for over fifteen minutes, and he suffered brain damage as a result. Just under five years later, he f iled this medical malpractice claim against LDS Hospital.

LDS Hospital requested a bifurcated trial to first ¶2 determine if Jensen had missed the applicable two-year statute of limitations. The jury found that he had. And the trial court entered judgment against Jensen.J ENSEN v. IHC H EALTH S ERVICES

Opinion of the Court

2 Jensen appeals the judgment, arguing that the trial court ¶3 erred in its jury instruction defining the “discovery of legal injury,” which starts the running of the statute of limitations in medical malpractice actions.

We conclude the instructions as a whole were correct. We ¶4

affirm.

BACKGROUND

On March 26, 2010, Erik Jensen went to the emergency ¶5 room at LDS Hospital, an IHC Health Services facility, “with complaints of abdominal pain that had been going on for a few hours.” After undergoing a computed tomography, 1 Jensen was prepared for and sent to “the operating room for a diagnostic laparoscopy, which [was] subsequently converted to an open laparotomy because he had an un usual inflammatory reaction in his abdomen.” After the surgery, Je nsen remained in the hospital to recover. He did “fairly well” for the first few days. But then he experienced complications and wa s transferred to the intensive

care unit.

The hospital staff conducted a second surgery to ensure ¶6 there was nothing wrong with Jens en’s abdomen, after which he

returned to the intensive care un it. On the morning of April 1, 2010, Jensen experienced cardiac arrest and for “15 to 17 minutes” his heart did not beat. As a result, Jensen suffered brain damage.

He was then transferred to a different IHC Health Services facility.

On April 26, 2010, Jensen signed a power of attorney ¶7 authorizing his mother to act on his behalf. Jensen and his mother met with Colin King, a medical ma lpractice attorney, to discuss a potential malpractice action. As pa rt of his investigation into the potential claim, King requested Jensen’s medical records from LDS Hospital and sent them to tw o different experts. After more than a year of investigation, King declined to represent Jensen. King advised Jensen’s mother that while LDS Hospital may have provided substandard care in some respects, it would be difficult to prove that this made any difference to Jensen's outcome.

After being turned away by King, Jensen’s mother met ¶8 with another law firm, Siegfried and Jensen, to discuss potential

__________________________________________________________

1 Also known as a CT or CAT scan.Cite as: 2020 UT 57

Opinion of the Court

3 representation. Three days later, Siegfried and Jensen also declined to represent Jensen. Af ter her meetings with King and Siegfried and Jensen, Jensen’s mother concluded that her son’s injury “was not due to medical mistake or negligence.” She instructed Siegfried and Jensen to destroy the medical records.

Jensen’s father met Charles Thronson, a medical ¶9 malpractice attorney, at a social event in March 2014. Jensen’s father and Thronson discussed Je nsen’s injury and Thronson offered “to look at [Jensen’s] case but needed to get medical records as soon as possible to avoid the running of the four-year statute [of repose].” Thronson shared Jensen’s medical records with an expert who concluded that the cardiac arrest was caused by several breaches of the standard of care. Thronson called Jensen to inform him of the reported breaches and offered to represent him.

Jensen retained Thronson. And on March 21, 2014, Jensen ¶10

served the defendants with notice of his intent to commence an action pursuant to Utah Code section 78B-3-412(1)(a). Jensen received a certificate of compliance from the Division of Occupational and Professional Licensing (DOPL), as was required at the time under section 78B-3-412(1)(b), 2 and he filed suit on February 2, 2015.

In the trial court, LDS Hospital moved for summary ¶11 judgment, arguing that the four-y ear statute of repose had expired before Jensen filed his complaint. Jensen responded that both the statute of repose and the two-year statute of limitations should have been tolled during the peri od of prelitigation review. The trial court agreed and denied the motion.

LDS Hospital then moved for a bifurcated trial to first ¶12 determine only whether Jensen’s lawsuit was barred by the applicable two-year statute of li mitations. The trial court granted

the motion.

At trial, the parties advocated for different jury ¶13 instructions on the meaning of a plaintiff’s “discovery of legal

__________________________________________________________ 2 We have since held unconstitu tional the requirement that a plaintiff obtain a certificate of compliance from DOPL in order to initiate a malpractice action against a health care provider. See Vega v. Jordan Valley Med. Ctr., LP , 2019 UT 35, ¶ 24, 449 P.3d 31.J ENSEN v. IHC H EALTH S ERVICES

Opinion of the Court

4 injury,” which triggers the running of the statute of limitations. Ultimately, the trial court instructed the jury that

[d]iscovery of a “legal inju ry” in this context occurs when a patient knows, or through reasonable diligence should know, each of the following: (1) that he sustained an injury; (2) the cause of the injury; and (3) that the injury may have been caused by a negligent act of a medical provider.

After a three-day trial, the jury found that Jensen ¶14 discovered or should have discovered his legal injury more than two years before he commenced the action. Thus, the action was barred by the statute of limitations, and the trial court entered judgment against Jensen.

Jensen timely appealed. He challenges the correctness of ¶15 the trial court’s jury instruction on “discovery of legal injury.”

STANDARD OF REVIEW

We review “‘[a] trial court’s ruling concerning a jury ¶16
instruction . . . for correctness,’ without deference to its interpretation of the law.” Arnold v. Grigsby ( Arnold V ), 2018 UT 14, ¶ 11, 417 P.3d 606 (citation omitted). “A new trial will not be granted unless any error of the trial court was prejudicial, meaning that it misadvised or misled the jury on the law.” Id. (citation omitted).

ANALYSIS

Jensen argues that during the bifurcated trial, the trial ¶17

court erred in its instruction defi ning a plaintiff’s “discovery of legal injury.” In a medical malpractice action, this discovery commences the running of the statute of limitations.

Under the Utah Health Care Malpractice Act (Malpractice ¶18 Act), a malpractice action must be “commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury.” U TAH

C ODE § 78B-3-404(1). In Foil v. Ballinger , we interpreted the word “injury” to encompass both “discovery of injury and the negligence which resulted in the injury.” 601 P.2d 144, 148 (Utah 1979). We referred to this as a plaintiff’s “legal injury,” and we held that “the statute begins to run when an injured person knows

or should know that he has suffered a legal injury .” Id. at 147 (emphasis added).Cite as: 2020 UT 57

Opinion of the Court

5 Jensen argues that the trial court’s instruction was ¶19 erroneous for two reasons. First, with regard to the patient’s discovery of negligence, Jensen argues that it was erroneous to instruct the jury that a patient’s discovery occurs when the patient knows “that the injury may have been caused by a negligent act of a medical provider,” rather than “that the injury was caused by a negligent act” of a medical provider. (Emphases added.)

Second, he argues that the trial court erroneously ¶20 instructed the jury that discovery of a legal injury occurs when a patient “ knows , or through reasonable diligence should know ” each of the elements of his legal injury, rather than “when a patient

discovers , or through reasonable diligence should discover ” each

element. 3 (Emphases added.)

“May Have Been Caused” Versus “Was Caused”

Jensen’s first argument pertains to the third element of ¶21 the disputed instruction. He argu es it was error to instruct the jury that he had discovered the negligence element of his legal injury when he knew “that the injury may have been caused by a negligent act of a medical provider,” rather than when he knew that the injury “ was caused ” by a negligent act of a medical provider. (Emphases added.) Fundamentally, this argument relates to how certain Jensen must have been that negligence caused his injury before he is considered to have “discovered” that component of his “legal injury.” Jensen argues that a plaintiff’s knowledge that an inju ry “may have been caused” by negligence is synonymous with a mere suspicion of negligence, which we have said is legally insufficient. See Arnold v. Grigsby ( Arnold IV ), 2012 UT 61, ¶ 17, 289 P.3d 449. Conversely, LDS Hospital argues that this verbiage is an accurate reflection of our

__________________________________________________________ 3 Jensen makes two additional arguments that we do not resolve. First, he argues that the knowledge of his mother and his various attorneys should not be imputed to him. But LDS Hospital asserts that he did not pr eserve this argument at trial, and in fact stipulated to jury instructions explaining that the knowledge of those individuals wo uld be imputed to him. Jensen does not dispute LDS Hospital’s representations. Second, Jensen proposes what he views as an optimal jury instruction. But this is not the instruction he proposed at trial, so this argument also is not preserved. Accordingly, we do not further address either

argument.J ENSEN v. IHC H EALTH S ERVICES

Opinion of the Court

6 case law. And it contends this is so even if the language is substantively equivalent to a suspicion of negligence.

As Jensen correctly observes, we have used both ¶22

formulations in our case law. In Foil , we held that legal injury “means discovery of injury and the negligence which resulted in the injury.” 601 P.2d at 148 (emp hasis added). We have used similar language repeatedly. See, e.g., Arnold IV , 2012 UT 61, ¶ 15 (“[A] patient has discovered he r injury only when she has discovered her ‘legal injury—that is, both the fact of injury and

that it resulted from negligence.’” (emphasis added) (citation omitted)); Collins v. Wilson , 1999 UT 56, ¶ 19, 984 P.2d 960 (“[T]he two-year statute of limitations period commences to run only when the injured person knew or should have known of an injury and that the injury was caused by a negligent act.” (emphasis added))

. But we have also used more equivocal language, ¶23

sometimes in the same case. See, e.g.

, Arnold IV , 2012 UT 61, ¶ 18 (“All that is necessary is that th e plaintiff be aware of facts that would lead an ordinary person, using reasonable diligence, to conclude that a claim for negligence may exist .” (emphasis added)); Daniels v. Gamma W. Brachytherapy, LLC , 2009 UT 66, ¶ 31, 221 P.3d 256 (“[T]he statute of limitations did not begin to run until [the plaintiff] discovere d that the Defendants’ treatment

and care might have been negligent and thus might have caused his injuries.” (emphases added)); Collins , 1999 UT 56, ¶ 19 (“[D]iscovery of legal injury, therefore, encompasses both awareness of physical injury an d knowledge that the injury is or may be attributable to negligence .” (quoting Chapman v. Primary Children’s Hosp. , 784 P.2d 1181, 1184 (Utah 1989) abrogated on other grounds by Bright v. Sorensen , 2020 UT 18, 463 P.3d 626)).

Accordingly, our analysis of the requisite level of ¶24 certainty in this context has no t hinged on the specific words Jensen identifies. However, we have addressed the substance of this question a number of times. We have explained that absolute or “certain knowledge” of negligence is not required. Arnold IV

, 2012 UT 61, ¶ 18. But we have also clarified that “without more, neither (1) the existence of symptoms, (2) a suspicion that a doctor’s negligence caused me dical complications, nor (3) the commencement of an investigation is sufficient to trigger the

statute of limitations.” Id. ¶ 15.

We have compared the discovery rule in the Malpractice ¶25 Act with statutory discovery rule s in general, explaining thatCite as: 2020 UT 57

Opinion of the Court

7 under a statutory discovery rule, the limitations period begins to run “when a plaintiff first has actu al or constructive knowledge of the relevant facts forming the ba sis of the cause of action.” Id. ¶ 18 (citation omitted). In a medical malpractice action, this refers to the moment when a patient first has knowledge or constructive knowledge of the facts underlyi ng 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. See Daniels , 2009 UT 66, ¶¶ 27,

29.

With regard to the third element—negligence—we have ¶26 explained that the level of know ledge sufficient to trigger the limitations period is objective, not subjective. A defendant must establish the moment when the plaintiff discovered or should have discovered through reasonable diligence “facts that would lead an ordinary person . . . to co nclude that a claim for negligence may exist.” Arnold IV , 2012 UT 61, ¶¶ 18, 21 (citation omitted).

We conclude that the trial court’s jury instructions as a ¶27 whole correctly conveyed the la w regarding when a plaintiff discovers negligence for purposes of triggering the statute of limitations. “[W]e look at the jury instructions in their entirety and

will affirm when the instructions taken as a whole fairly instruct the jury on the law applicable to the case.” Arnold V , 2018 UT 14, ¶ 40, 417 P.3d 606 (citation omitted).

While we have made clear that a patient’s subjective ¶28 suspicion of negligence is not legally sufficient to show discovery of a legal injury, we conclude that the trial court’s jury instructions did not give such an impression even though they employed the “may have been caused” formulation. The
instructions here stated,

Discovery of Legal Injury Defined

[Jensen] was required to have filed a medical malpractice claim within two years from the date

that he discovered or should have discovered his “legal injury.”

Discovery of a “legal injury” in this context occurs when a patient knows, or through reasonable diligence should know, each of the following: (1) that he sustained an injury; (2) the cause of the injury; and (3) that the injury may have been caused by a negligent act of a medical provider.J ENSEN v. IHC H EALTH S ERVICES

Opinion of the Court

8 . . . Negligence Element

In evaluating the third element of legal injury, you must weigh all of the facts and circumstances to

determine whether the facts here were sufficient to place ( sic ) an ordinary person, exercising reasonable diligence, to conclude that medical negligence may

have occurred.

In making this determin ation you should note
that, without more, neither the existence of symptoms, a patient’s suspicions of negligence, nor

the commencement of an inve stigation, is sufficient to inform a patient that a claim for negligence may exist. However, the law does not require a patient to have actual or certain knowledge of negligence. 4

Jensen takes issue with a particular phrase within a specific jury
instruction. But we conclude that, taken as a whole, the trial court’s instructions accurately described the relevant law— specifically that a plaintiff has discovered negligence for purposes of the “discovery of legal injury” when the plaintiff first discovers or in the exercise of reasonable diligence should have discovered facts sufficient to lead an ordinary person to conclude that the

__________________________________________________________ 4 At oral argument, LDS Hospital argued that it would be improper for a trial court to defi ne “negligence” for the jury in a bifurcated trial focusing only on the statute of limitations, because it could lead the jury to assess th e merits of the case. While Jensen has not raised this as a failing of the instructions here, we briefly address LDS Hospital’s argument. We do not see why a definition of negligence would lead to a tr ial on the merits, assuming the instructions adequately explained th at the question before the jury was only whether the plaintiff filed suit within the two-year

statute of limitations. The instru ction on discovery of a legal injury asks the jury to determin e whether the plaintiff discovered facts that would lead an ordinary person to conclude that the injury was (or may have been) due to negligence. Negligence is a legal term. We disagree with LDS Hospital’s assertion that the jury should be expected to apply this instruction without being informed of the meaning of negligence.Cite as: 2020 UT 57

Opinion of the Court

9 injury was or may have been caused by negligence. 5 See Arnold IV

, 2012 UT 61, ¶¶ 15, 18; Collins , 1999 UT 56, ¶ 19.

“Knows” Versus “Discovers”

Jensen’s second argument is that the trial court erred in ¶29 instructing the jury that discovery of a legal injury occurs when a patient “ knows , or through reasonable diligence should know

. . . (1) that he sustained an injury; (2) the cause of the injury; and (3) that the injury may have been caused by a negligent act of a medical provider.” (Emphases added.) He argues that the

instruction should have used th e word “discover” in place of

“know.”

As with Jensen’s first argument, we have used both ¶30
“knows” and “discovers” in our case law, and we have used them interchangeably. For example, in Foil , we held that the term “discovery of injury” in the Malpractice Act means “ discovery of injury and the negligence which resulted in the injury.” 601 P.2d at 148 (emphasis added). But we also said that the statute begins to run “when an injured person knows or should know that he has suffered a legal injury.” Id. at 147 (emphasis added); see also Arnold

IV , 2012 UT 61, ¶ 33 (“[A] defendant can show that the claim is barred . . . by demonstrating that more than two years elapsed between the date the plaintiff discovered or should have discovered that the course of treatment was negligent and the date she filed her claim.” (emphasis added)); Daniels , 2009 UT 66, ¶ 25 (“[T]he determination of when a plaintiff is aware of the causal fact turns on a jury’s determination of when a plaintiff acting with reasonable diligence discovered or should have discovered which event might have caused his injury.” (emphasis added)); Collins , 1999 UT 56, ¶ 19 (“[T]he two-year statute of limitations period commences to run only when the injured person knew or should

have known of an injury and that the injury was caused by a negligent act.” (emphasis added)); Brower v. Brown , 744 P.2d 1337, 1338–39 (Utah 1987) (“This Court has defined discovery of the injury as knowledge of a legal injury; that is, the plaintiff must know

__________________________________________________________ 5 This does not mean that it would have been erroneous if the

court had used the “was caused” terminology. We have used that formulation throughout our case law. And so long as a set of instructions correctly explain the substantive law applicable to the discovery of a legal injury, the instructions would be legally

correct.J ENSEN v. IHC H EALTH S ERVICES

Opinion of the Court

10 of the injury and of the negligence which caused the injury.” (emphases added)); Deschamps v. Pulley , 784 P.2d 471, 475 (Utah Ct. App. 1989) (holding that the plaintiff knew or should have known her mother’s injury was a result of medical negligence more than two years before filing an action). Beyond these two words, we have also employed synonymous terms such as “reveals,” Arnold

IV , 2012 UT 61, ¶ 20 and becomes “aware,” Daniels , 2009 UT 66, ¶ 30; Foil , 601 P.2d at 147.

Importantly, Jensen has not explained how the use of ¶31

“knows” instead of “discovers” renders the trial court’s instructions erroneous. He argues only that “discovers” is preferable because it is the word used in the Malpractice Act. See

U TAH C ODE § 78B-3-404(1). And he asserts it is more precise than

“knows” in this context.

We acknowledge that there are some benefits to using ¶32 “discover” in place of “know” in this context. As Jensen notes, it is the language used in the statute. Id. (providing that an action

“shall be commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury”).

And it does more precisely communicate that the jury ¶33 must determine the moment in time “when a plaintiff first has actual or constructive knowledge of the relevant facts forming the

basis of the cause of action.” Arnold IV , 2012 UT 61, ¶ 18 (citation omitted). “Know” means “to have understanding of” or “to be aware of the truth or factuality of.” Know , Merriam-WebsterOnline Dictionary, https://www.merriamwebster.com/dictionary/know (l ast visited July 27, 2020).

Whereas “discover” is defined as “to make known” or “to obtain sight or knowledge of for the first time.” Discover, MerriamWebster Online Dictionary, https://www.merriamwebster.com/dictionary/discover (last visited July 27, 2020). We agree that “discover” connotes learning new information for the first time more precisely than does “know.”

However, while we appreciate Jensen’s point, he fails to ¶34 explain why the trial court’s use of “know” caused the disputed jury instruction to be legally incorrect. And in light of our use of both words interchangeably and th eir similar meanings, we see no

reason to conclude that it was.Cite as: 2020 UT 57

Opinion of the Court

11 CONCLUSION

When viewed as a whole, the trial court’s jury ¶35 instructions correctly stated the law relevant to discovery of a legal injury. We affirm.