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Lee v. Williams

Court of Appeals of Utah

January 25, 2018

Kylie Ann Beddoes Lee, Appellant,
v.
Kenneth L. Williams and Moab Family Medicine PC, Appellees.

         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 Opinion, in which Judges Kate A. Toomey and Jill M. Pohlman concurred.

          OPINION

          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 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.

         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 "Rh-negative."

         ¶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 "Rh-positive." 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 Rh-sensitized, 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.

         ¶7 In this case, as it turned out, Lee's blood type was Rh-negative 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 Rh-sensitized, 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 Rh-sensitized 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 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 Rh-sensitized; 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 Rh-sensitized-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.

         ¶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 Rh-sensitized, 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).

         ¶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 first-phase 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."

         ¶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 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 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:

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, ...

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