This opinion is subject to revision before final 

publication in the Pacific Reporter

2020 UT 57 

IN THE

SUPREME COURT OF THE STATE OF UTAH

ERIK JENSEN, 

Appellant, 

v. 

IHC HEALTH SERVICES, INC. dba LDS HOSPITAL, 

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 

JUSTICE PETERSEN authored the opinion of the Court, in which 

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, 

JUSTICE HIMONAS, and JUSTICE PEARCE joined. 

JUSTICE PETERSEN, opinion of the Court: 

INTRODUCTION 

¶1 Erik Jensen suffered a cardiac arrest after undergoing 

abdominal surgery at LDS Hospital. His heart did not beat for 

over fifteen minutes, and he suffered brain damage as a result. 

Just under five years later, he filed this medical malpractice claim 

against LDS Hospital. 

¶2 LDS Hospital requested a bifurcated trial to first 

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. 
JENSEN v. IHC HEALTH SERVICES

Opinion of the Court

2 

¶3 Jensen appeals the judgment, arguing that the trial court 

erred in its jury instruction defining the “discovery of legal 

injury,” which starts the running of the statute of limitations in 

medical malpractice actions. 

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

affirm. 

BACKGROUND 

¶5 On March 26, 2010, Erik Jensen went to the emergency 

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 unusual inflammatory reaction in 

his abdomen.” After the surgery, Jensen remained in the hospital 

to recover. He did “fairly well” for the first few days. But then he 

experienced complications and was transferred to the intensive 

care unit. 

¶6 The hospital staff conducted a second surgery to ensure 

there was nothing wrong with Jensen’s abdomen, after which he 

returned to the intensive care unit. 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. 

¶7 On April 26, 2010, Jensen signed a power of attorney 

authorizing his mother to act on his behalf. Jensen and his mother 

met with Colin King, a medical malpractice attorney, to discuss a 

potential malpractice action. As part of his investigation into the 

potential claim, King requested Jensen’s medical records from 

LDS Hospital and sent them to two 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. 

¶8 After being turned away by King, Jensen’s mother met 

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. After 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. 

¶9 Jensen’s father met Charles Thronson, a medical 

malpractice attorney, at a social event in March 2014. Jensen’s 

father and Thronson discussed Jensen’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. 

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

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. 

¶11 In the trial court, LDS Hospital moved for summary 

judgment, arguing that the four-year 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 period of prelitigation review. The 

trial court agreed and denied the motion. 

¶12 LDS Hospital then moved for a bifurcated trial to first 

determine only whether Jensen’s lawsuit was barred by the 

applicable two-year statute of limitations. The trial court granted 

the motion. 

¶13 At trial, the parties advocated for different jury 

instructions on the meaning of a plaintiff’s “discovery of legal 

__________________________________________________________ 2 We have since held unconstitutional 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. 
JENSEN v. IHC HEALTH SERVICES

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 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. 

¶14 After a three-day trial, the jury found that Jensen 

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. 

¶15 Jensen timely appealed. He challenges the correctness of 

the trial court’s jury instruction on “discovery of legal injury.” 

STANDARD OF REVIEW 

¶16 We review “‘[a] trial court’s ruling concerning a jury 

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 

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

court erred in its instruction defining a plaintiff’s “discovery of 

legal injury.” In a medical malpractice action, this discovery 

commences the running of the statute of limitations. 

¶18 Under the Utah Health Care Malpractice Act (Malpractice 

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.” UTAH 

CODE § 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 

¶19 Jensen argues that the trial court’s instruction was 

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.) 

¶20 Second, he argues that the trial court erroneously 

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” 

¶21 Jensen’s first argument pertains to the third element of 

the disputed instruction. He argues 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 injury “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 preserve this argument at trial, 

and in fact stipulated to jury instructions explaining that the 

knowledge of those individuals would 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. 
JENSEN v. IHC HEALTH SERVICES

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. 

¶22 As Jensen correctly observes, we have used both 

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 (emphasis added). We have used 

similar language repeatedly. See, e.g., Arnold IV, 2012 UT 61, ¶ 15 

(“[A] patient has discovered her 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)).

¶23 But we have also used more equivocal language, 

sometimes in the same case. See, e.g., Arnold IV, 2012 UT 61, ¶ 18 

(“All 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.” (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] discovered 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 and 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)). 

¶24 Accordingly, our analysis of the requisite level of 

certainty in this context has not 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 medical complications, nor (3) the 

commencement of an investigation is sufficient to trigger the 

statute of limitations.” Id. ¶ 15. 

¶25 We have compared the discovery rule in the Malpractice 

Act with statutory discovery rules in general, explaining that 
Cite 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 actual or constructive knowledge of 

the relevant facts forming the basis 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 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. See Daniels, 2009 UT 66, ¶¶ 27, 

29. 

¶26 With regard to the third element—negligence—we have 

explained that the level of knowledge 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 conclude that a claim for negligence 

may exist.” Arnold IV, 2012 UT 61, ¶¶ 18, 21 (citation omitted). 

¶27 We conclude that the trial court’s jury instructions as a 

whole correctly conveyed the law 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). 

¶28 While we have made clear that a patient’s subjective 

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.
JENSEN v. IHC HEALTH SERVICES

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 determination you should note 

that, without more, neither the existence of 

symptoms, a patient’s suspicions of negligence, nor 

the commencement of an investigation, 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 define “negligence” for the jury in a 

bifurcated trial focusing only on the statute of limitations, because 

it could lead the jury to assess the 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 trial on the merits, assuming the 

instructions adequately explained that the question before the jury 

was only whether the plaintiff filed suit within the two-year 

statute of limitations. The instruction on discovery of a legal 

injury asks the jury to determine 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. 
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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” 

¶29 Jensen’s second argument is that the trial court erred in 

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 the word “discover” in place of 

“know.” 

¶30 As with Jensen’s first argument, we have used both 

“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. 
JENSEN v. IHC HEALTH SERVICES

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. 

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

“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

UTAH CODE § 78B-3-404(1). And he asserts it is more precise than 

“knows” in this context. 

¶32 We acknowledge that there are some benefits to using 

“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”). 

¶33 And it does more precisely communicate that the jury 

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-Webster 

Online Dictionary, https://www.merriamwebster.com/dictionary/know (last 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.” 

¶34 However, while we appreciate Jensen’s point, he fails to 

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 their similar meanings, we see no 

reason to conclude that it was. 
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Opinion of the Court 

11 

CONCLUSION 

¶35 When viewed as a whole, the trial court’s jury 

instructions correctly stated the law relevant to discovery of a 

legal injury. We affirm.